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fetea/is 


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'Z-^~< — '     /-*-*_•  *-^  -^i. 


BIOGRAPHICAL  NOTICE 


OF 


STEPHEN    J.    FIELD 


TAKEN    PARTLY    FROM   THE    RECORD   OF   THE    FAMILY   OF   THE 
LATE    REV.    DAVID    D.    FIELD,    OF    STOCKBRIDGE,    MASS., 
COMPILED  BY  HIS  YOUNGEST  SON,  HENRY  M.  FIELD, 
AND   PARTLY  FROM   DOCUMENTS   IN  THE  POS- 
SESSION    OF     DIFFERENT     MEMBERS 
OF     THE     FAMILY. 


NOT   PUBLISHED,  BUT   PRINTED   ONLY   FOR   THE 
USE   OF   THE   FAMILY. 


-  If  <*  «f 


Bancroft  Library 


STEPHEN  J.    FIELD. 


Now,  for  the  first  time  in  the  history  of  our  family, 
death  came  into  the  household.  In  the  midsummer  of 
1815  (July  11)  was  born  a  fifth  son,  to  whom,  in  honor 
of  a  venerable  minister  of  Connecticut,  was  given  the 
name  of  STEPHEN  JOHNSON.  He  lived  but  a  little  over 
five  months,  dying  on  Christmas  day  of  the  same  year. 
It  was  a  bitter  sorrow  to  the  bereaved  parents,  and  so 
deeply  did  they  feel  it  that,  when  they  removed  to  Stock- 
bridge,  the  sharpest  pang  was  the  thought  that  they 
should  leave  that  babe  behind.  More  than  thirty  years 
afterward  my  father  made  a  journey  to  Connecticut,  to 
take  up  that  little  form,  and  bear  it  tenderly  over  the 
mountains,  and  lay  it  down  again  beside  its  kindred  dust. 
This  early  grief  consecrated  the  memory  of  that  child,  so 
that  when  a  sixth  son  was  born,  November  4,  1816,  his 
parents  gave  him  the  same  name.  He,  too,  was  of  a  mould 
so  delicate  and  fragile  as  gave  little  promise  that  he  could 
ever  reach  manhood.  For  a  time  it  seemed  doubtful  if 
he  could  live.  The  old  dames  who  came  around  his 
cradle  shook  their  heads,  and  told  his  mother  that  "  she 
could  never  raise  that  child ! "  But  her  love  watched 
him  night  and  day — no  hired  attendant  ever  took  her 
place — and  carried  him  through  the  perils  of  infancy. 
Nothing  but  that  incessant  care  saved  him;  so  that  he 
has  always  had  reason  to  feel  that,  in  a  double  sense,  he 
owed  his  life  to  his  mother. 

He  was  not  three  years  old  when  the  family  removed 
to  Stockbridge,  in  August,  1819,  and  here  he  spent  the 


ten  years  following — the  period  of  boyhood.  In  1829 
(December  2)  his  sister  Emilia  was  married  to  Rev.  Josiah 
Brewer,  who  was  immediately  to  embark  for  the  East,  as 
a  missionary,  to  promote  female  education  among  the 
Greeks.  Her  brother  Dudley  (who,  as  the  eldest  of  the 
family,  was  always  looking  out  for  the  education  and 
advancement  of  his  brothers)  thought  it  would  be  a  good 
opportunity  for  Stephen,  now  a  boy  of  thirteen,  to  accom- 
pany his  sister,  to  study  the  Oriental  languages,  and  thus 
qualify  himself  to  be  a  professor  of  Oriental  literature  in 
some  college  on  his  return.  His  sister  was  delighted  at 
the  suggestion,  and  as  our  parents  gave  their  consent,  it 
was  decided  upon.  The  family  party  sailed  from  New 
York  on  the  10th  of  December,  bound  for  Smyrna.  It 
had  been  Mr.  Brewer's  intention  to  go  from  there  to  Greece, 
but  when  he  reached  Smyrna  he  was  persuaded  to  remain 
in  that  city  as  a  place  where  he  could  labor  for  Greek 
education  quite  as  effectively  as  in  Greece  itself.  There 
were  in  Asia  Minor  at  that  time  more  Greeks  than  of  any 
other  nation.  Accordingly  he  settled  in  Smyrna,  where 
he  remained  nine  years.  For  two  and  a  half  Stephen 
was  in  his  family.  During  that  time  he  visted  Ephesus, 
Scio,  Patmos,  Tenos,  and  JEgina.  He  accompanied  Mrs. 
Hill  (the  wife  of  Rev.  John  Hill,  D.  D.,  the  well-known 
Episcopal  missionary  in  Greece)  from  Smyrna  to  Athens, 
and  there  spent  the  winter  of  1831-'32.  The  place  was 
then  in  ruins,  and,  unable  to  find  a  convenient  house,  they 
lived  in  an  old  Venetian  tower.  So  Dr.  Hill  himself  in- 
formed me  on  a  visit  to  Athens  in  November,  1875,  when 
the  place  once  destroyed  had  arisen  from  its  ashes,  and 
grown  to  be  a  large  and  beautiful  city.  While  in  the 
East  young  Field  learned  modern  Greek  so  that  he 
could  speak  it  fluently,  and  for  a  time  kept  his  journal 
in  it.  He  also  acquired  some  knowledge  of  Italian, 
French,  and  Turkish. 

Of  these  years  spent  in  the  East  he  has  always  re- 
tained  very   vivid   impressions.      Living   in   a   foreign 


country,  and  mingling  with  people  of  another  race,  lan- 
guage, and  religion,  enlarged  his  ideas.  He  formed  a 
better  opinion  of  the  Turks.  In  travelling  with  them  he 
found  that  they  were  very  attentive  to  th'eir  devotions, 
saying  their  prayers  at  sunrise,  at  noon,  and  at  sun- 
set. Often  he  was  awakened  at  night  by  their  rising  to 
say  their  prayers.  He  had  been  educated  in  the  strictest 
school  of  the  Puritans,  who,  with  all  their  good  qualities, 
were  not  the  most  tolerant  of  religious  opinions  which 
differed  from  their  own.  Of  course  this  child  of  a  strict 
New  England  pastor  was  taught  to  look  with  horror  upon 
the  followers  of  the  False  Prophet;  but  for  all  that,  he 
was  profoundly  impressed  with  what  he  saw,  and  could 
not  but  conclude  that  there  must  be  something  good  in  a 
religion  which  inspired  such  devotion. 

He  found  that  the  Turks  were  proverbially  honest  in 
their  dealings.  If  he  went  into  a  bazaar  to  inquire  if  a 
piece  of  coin  was  good,  he  would  be  asked,  "Did  you  get 
it  from  a  Turk?"  If  he  said  "  Yes,"  that  settled  the  point 
that  it  was  good  ;  if  he  said  "No,"  they  would  ring  it  to 
test  its  genuineness.  One  day  some  gentlemen  of  his 
acquaintance  were  looking  for  a  place  in  the  country  for 
the  summer,  and  one  was  recommended  to  them  as  a 
quiet,  orderly  place,  where  the  people  were  very  moral — 
"for  there  was  not  a  Christian  within  ten  miles!"  This 
was  his  first  lesson  in  religious  tolerance. 

Another  lesson  of  the  same  kind  he  learned  in  regard 
to  the  members  of  the  Greek  Church,  with  whom  he 
often  came  in  contact,  and  found  that  they  were  most  ex- 
emplary in  their  religious  duties.  So  with  the  Roman 
Catholics,  of  whom  there  were  many  in  Smyrna;  he  saw 
in  them  a  degree  of  devotion  which  was  an  example  to 
Protestants.  These  things  gradually  opened  his  young 
eyes,  and  satisfied  him  that  not  all  the  religion  in  the 
world  is  to  be  found  in  Protestant  Christendom. 

An  experience  of  a  very  different  kind  was  the  visita- 
tions of  the  plague  and  the  cholera,  by  which  Smyrna, 


like  so  many  other  cities  of  the  East,  was  often  scourged. 
In  the  terrible  plague  of  1831  every  one  avoided  his 
neighbor,  as  if  the  slightest  touch  carried  contagion.  If 
two  men  met  in  the  street,  each  drew  away  from  the  other, 
as  if  contact  were  death.  Sometimes  they  hugged  the 
walls  of  the  houses,  with  canes  in  their  hands,  ready  to 
strike  down  any  one  who  should  approach.  All  papers 
and  letters  coming  through  the  mails  were  smoked  and 
dipped  in  vinegar  before  they  were  delivered,  lest  they 
might  communicate  infection.  Even  vegetables  were 
passed  through  water  before  they  were  taken  from  the 
hands  of  the  seller.  Terrible  tales  were  told  of  scenes 
where  guests  were  carried  away  dead  from  the  table,  and 
servants  dropped  down  while  waiting  upon  it.  On  every 
countenance  was  depicted  an  expression  of  terror.  When 
the  plague  appeared  in  a  house,  it  was  instantly  deserted, 
the  occupants  running  from  it  without  stopping  to  look 
aUanything,  or  to  take  anything  with  them,  as  if  pursued 
by  an  avenging  angel.  Of  those  who  were  attacked  nearly 
one-half  were  swept  away.  Few,  except  those  who  had 
recovered  from  the  plague,  ventured  to  go  about  the  city. 
And  it  was  not  till  the  pestilence  had  spent  its  force,  and 
their  houses  had  been  thoroughly  cleansed  and  purified, 
that  the  affrighted  inhabitants  returned  to  their  homes. 

Such  was  the  memorable  plague  of  1831,  of  which  this 
missionary  family  were  witnesses.  Mr.  Brewer  remained 
in  the  city  for  two  or  three  weeks  after  it  broke  out,  when, 
for  the  safety  of  his  family,  he  took  them  on  board  a  vessel 
and  sailed  for  Malta.  But  no  sooner  had  they  arrived 
than  they  were  ordered  into  quarantine.  So,  without 
remaining  more  than  two  or  three  days,  not  being  permitted 
to  land,  they  returned  to  Smyrna,  after  an  absence  of  a 
little  over  six  weeks,  when  the  plague  had  passed.  On 
the  return  voyage  they  visited  Patmos,  Scio,  and  other 
islands  of  the  Grecian  Archipelago. 

In  the  autumn  of  the  same  year  Smyrna  was  visited 
with  the  Asiatic  cholera,  when  there  were  three  hundred 


deaths  a  day.  Thirty  thousand  people  left  the  city  and 
camped  in  the  fields.  During  that  period  Mr.  Brewer 
filled  his  pockets  with  medicines  and  went  around  in  the 
lanes  and  alleys,  and  ministered  to  the  sick  and  dying. 
His  young  brother-in-law,  with  his  pockets  filled  in  the 
same  way,  accompanied  him  in  all  his  rounds.  An  ex- 
tract which  we  have  copied  in  our  sketch  of  sister  Emilia 
speaks  of  Mr.  Brewer's  intrepid  devotion  amid  these 
terrible  scenes. 

Young  Field  remained  in  the  East  two  years  and  a 
half,  when  Mr.  Brewer  thought  it  was  time  for  him  to 
return  to  America  to  enter  college.  Accordingly  he  sailed 
for  home  in  the  latter  part  of  1832,  and  entered  Williams 
College  in  the  fall  of  1833.  He  graduated  in  1837,  with 
the  valedictory  oration — the  highest  honor  of  his  class. 
The  next  spring  he  went  to  New  York,  and  began  the 
study  of  law  in  his  brother  Dudley's  office.  His  studies 
were  interrupted  by  a  long  illness.  When  he  was  suffi- 
ciently recovered  he  removed  to  Albany  for  change  of 
scene  and  occupation,  and  for  some  months  heard  recita- 
tions of  classes  in  the  Female  Academy,  spending  his 
leisure  time  in  the  office  of  John  Van  Buren,  the  Attorney- 
General  of  the  State.  After  a  year  and  a  half  he  returned 
to  New  York  city,  and  re-entered  his  brother's  office,  and 
in  1841  was  admitted  to  the  bar,  and  became  his  partner, 
and  so  remained  for  seven  years. 

The  long  illness  thus  spoken  of  resulted  from  an  injury 
to  his  right  knee-joint,  which  occurred  in  the  city  of  New 
York  in  the  summer  of  1838.  He  was  walking,  one 
morning  in  August,  down  Nassau  street,  when  he  came 
in  collision  with  the  hub  of  the  wheel  of  a  small  coal- 
cart  drawn  up  on  the  sidewalk,  which  he  had  not  noticed, 
his  attention  at  the  time  being  drawn  to  something  else. 
The  injury  was  thought  to  be  slight,  and,  though  painful, 
did  not  delay  him  in  proceeding  to  his  office.  On  the 
evening  of  that  day  there  was  some  inflammation  in 
the  joint,  and  the  pain  had  increased.  On  the  follow- 


8 

ing  morning  he  was  advised  to  send  for  a  physician,  and 
did  so.  He  did  not,  at  the  time,  think  that  the  injury 
would  interrupt  his  ordinary  occupations  more  than  one 
day.  His  physician,  however,  gave  him  a  large  quantity 
of  calomel,  which  greatly  prostrated  him  and,  instead  of 
diminishing,  increased  the  inflammation  in  his  knee-joint. 
The  result  was  that  he  was  confined  to  his  room  in  New 
York  for  several  weeks,  and  was  then  carried  on  his  bed 
to  Haddam,  Connecticut,  where  his  parents  resided. 
After  some  months'  confinement  he  was  able  to  get  up, 
but  so  serious  had  been  the  injury  to  his  knee-joint,  prin- 
cipally, he  has  always  thought,  from  the  medicine  taken, 
that  he  was  unable  to  bring  his  right  foot  to  the  ground, 
and  for  some  months  he  went  on  crutches.  In  the  fall  of 
the  following  year  he  was  able  to  throw  one  of  the  crutches 
aside  and  to  walk  with  the  aid  of  the  other.  The  lame- 
ness which  resulted  from  this  injury  has  never  entirely 
left  him.  For  several  years  it  was  slight,  but,  unfortu- 
nately, in  the  summer  of  1882,  when  in  California,  he 
received  an  additional  injury  to  it.  He  was  invited  by 
friends  of  Senator  Casserly  to  act  as  a  pall-bearer  at  his 
funeral,  and  he  did  so.  The  services  were  at  the  church 
at  the  corner  of  Dupont  and  California  streets.  After 
they  were  concluded,  instead  of  the  pall-bearers  being 
furnished  with  carriages  to  take  them  to  the  cemetery, 
they  were  requested  to  walk  after  the  hearse  down  Cali- 
fornia street,  up  Montgomery  street  to  Market  street,  and 
along  Market  street  for  several  blocks.  At  that  time  the 
streets  of  San  Francisco  were  wretchedly  paved  with  cob- 
ble-stones of  various  sizes  and  placed  in  irregular  order. 
Whilst  walking  up  Market  street  Mr.  Field  stepped  on 
one  of  these  cobble-stones,  about  three  inches  higher  than 
its  neighbors,  which  so  wrenched  his  knee  that  he  was 
obliged  to  leave  the  procession.  For  many  years  after- 
wards he  was  not  free  from  pain  except  when  asleep  or 
occupied  in  some  serious  matter  engaging  his  close  atten- 
tion. He  was  a  great  sufferer  from  this  cause,  and  though 


he  consulted  eminent  surgeons,  both  in  this  country  and 
in  Europe,  he  obtained  very  little  relief  from  their  treat- 
ment or  from  the  treatment  which  he  has  taken  at  differ- 
ent watering-places  whose  waters  were  supposed  to  possess 
healing  virtues.  His  lameness  has  not,  however,  pre- 
vented him,  at  any  time,  from  the  performance  of  his 
regular  judicial  duties. 

In  the  spring  of  .1848  he  was  seized  with  a  desire  to 
visit  Europe,  and,  terminating  his  partnership  with  his 
brother,  that  he  might  be  free,  he  went  abroad,  and  spent 
the  following  winter  in  Paris.  That  was  the  year  of  the 
Revolution,  when  Louis  Philippe  was  overthrown,  and 
the  government  of  France  was  passing  through  the  stage 
of  a  Republic  back  to  the  Second  Empire.  While  he  was 
in  the  city  it  was  visited  with  the  cholera,  whose  terrible 
ravages  recalled  the  cholera  of  Smyrna.  His  sister  Mary 
joined  him  in  Paris,  and  in  the  following  spring  his 
brother  Cyrus  and  his  wife  went  to  Europe,  and  they 
all  met  in  Brussels,  'and  together  travelled  during  the 
summer.  The  continent  was  still  in  great  agitation.  They 
were  in  Rome  soon  after  the  French  troops  had  taken 
possession ;  and  were  in  Vienna  while  the  war  was  raging 
in  Hungary,  and  its  forces  were  approaching  that  city- 
They  returned  home  in  the  autumn  of  that  year. 

The  fall  of  1849  was  a  stirring  moment  in  the  history 
of  the  country.  The  Mexican  war  had  been  brought  to 
a  close  the  previous  year  by  a  treaty  in  which  California 
was  ceded  to  the  United  States,  and  soon  afterwards  this 
new  acquisition  was  discovered  to  be  a  land  in  the  bed 
of  whose  streams  and  in  whose  hills  and  mountains  gold 
was  found.  Nothing  could  be  conceived  more  fitted  to 
excite  the  imagination  of  young  America.  The  picture 
of  an  empire  on  the  Pacific,  rising  as  it  were  out  of  the 
sea,  presented  itself  as  a  boundless  field  for  enterprise 
and  ambition.  No  one  was  more  prepared  to  catch  the 
excitement  than  the  young  lawyer  just  returned  from 
Europe.  Years  before  his  attention  had  been  drawn  to 

2 


10 

the  country  bordering  on  the  Pacific,  and  particularly  to 
the  bay  of  San  Francisco.  In  1845,  the  year  before  the 
Mexican  war,  his  brother  Dudley  had  written  two  articles 
for  the  Democratic  Review — a  political  magazine  of  the 
day — upon  the  Oregon  question,  which  was  that  of  the 
northwestern  boundary  between  the  British  possessions 
and  the  territory  of  the  United  States.  In  preparing 
them,  he  had  examined  several  works  on  Oregon  and 
California,  and  among  others  that  of'Greenhow,  then 
recently  published,  and  thus  became  familiar  with  the 
geography  of  the  Pacific  Coast.  Afterwards,  when  the 
war  broke  out,  in  speaking  of  its  probable  issue,  he  re- 
marked that  "if  he  were  a  young  man  he  would  go  to 
San  Francisco,"  for  he  was  satisfied  that  peace  would  never 
be  concluded  without  our  acquiring  its  harbor  (as  there 
was  no  other  equally  good  harbor  on  the  coast),  and  that, 
in  his  opinion,  at  no  distant  day  a  great  city  would  rise 
on  its  borders.  He  offered  to  furnish  his  younger  brother 
the  means  to  go,  and  also  for  investment  in  land  lying  on 
the  harbor.  Some  months  afterwards,  while  Col.  Steven- 
son's regiment  was  preparing  to  start  from  New  York  for 
California,  his  brother  again  referred  to  the  subject,  and 
.suggested  the  idea  of  his  going  out  with  the  regiment. 
But  he  wished  to  go  to  Europe,  and  so  the  project  was 
deferred.  But  the  idea  thus  suggested  had  taken  posses- 
sion of  his  mind.  He  was  attracted  by  the  prospect  of 
adventure  in  a  new  country,  besides  the  ambition  of  being 
one  of  the  founders  of  a  new  commonwealth  which  it 
was  evident  would,  at  no  distant  day,  rise  on  the  Pacific 
Coast. 

In  December,  1848,  while  in  Paris,  he  read  in  the  Xew 
York  Herald  the  message  of  President  Polk  confirming 
the  reports  of  the  discovery  of  gold  in  California.  This 
recalled  the  suggestion  of  his  brother,  and  made  him 
almost  regret  that  he  had  not  acted  upon  it.  But  as  he 
was  now  in  Europe,  he  concluded  to  carry  out  his  original 
plan  of  completing  his  tour  before  returning  to  America. 


11 

But  the  fire  was  only  smothered,  not  extinguished,  and  it 
burst  out  anew  when  he  found  himself  once  more  in  his 
own  country,  being  kindled  afresh  by  the  general  excite- 
ment. Crowds  were  leaving  by  every  steamer  for  the 
Isthmus  and  by  every  ship  around  Cape  Horn.  Thous- 
ands had  crossed  the  plains  the  previous  summer,  or 
were  on  their  way.  He  was  not  long  in  making  up  his 
mind.  He  landed  in  New  York  on  the  1st  of  October, 
and  on  the  13th  of  November  he  left  on  the  steamer 
Crescent  City  for  Chagres,  an  old  Spanish-American 
town  on  a  river  of  that  name,  on  the  Isthmus  of  Panama, 
where  he  arrived  in  about  a  week.  In  company  with 
others  he  took  a  boat  and  was  pushed  up  the  river  by 
Indians  to  'Graces,  where  they  engaged  mules  and  rode 
over  the  mountain  to  the  city  of  Panama.  Here  they 
found  a  crowd  of  emigrants  and  adventurers  bound  for 
the  land  of  gold.  They  took  passage  for  San  Francisco 
on  an  old  steamer  named  the  California,  which  was 
crowded  to  the  utmost,  passengers  being  stowed  in  every 
nook  and  corner,  and  some  without  even  a  berth,  lying  on 
the  deck.  It  was  said  there  were  over  twelve  hundred 
persons  on  board.  Many  carried  with  them  the  seeds  of 
disease,  contracted  under  a  tropical  sun,  which,  being 
aggravated  by  hardships,  insufficient  food,  and  the 
crowded  condition  of  the  steamer,  developed  as  the  voy- 
age proceeded.  Panama  fever  in  its  worst  form  broke 
out,  and  soon  the  main  deck  was  covered  with  the  sick. 
There  was  a  physician  attached  to  the  ship,  but  he,  too, 
was  prostrated.  In  this  extremity  the  young  lawyer,  just 
from  New  York  and  from  Paris,  turned  himself  into  a 
nurse,  and  went  from  one  sufferer  to  another,  bending 
over  the  sick,  and  watching  them  as  carefully  as  if  he 
had  been  trained  in  a  hospital.  One  gentleman,  after- 
wards a  lawyer  of  high  standing  in  California,  Mr.  Greg- 
ory Yale,  thought  that  he  owed  his  life  to  this  attention 
of  his  fellow -passenger,  and  ever  after  felt  towards  him 
as  a  brother.  At  last,  after  twenty -two  days,  this  voyage 


12 

of  misery  ended ;  he  reached  San  Francisco  on  almost  the 
last  day  of  the  year,  December  28,  1849,  and  went  on 
shore  between  eight  and  nine  o'clock  at  night. 

Mr.  Field  landed  in  California  with  ten  dollars  in  his 
pocket.  He  had  two  trunks.  These  were  of  too  great 
weight  for  him  to  carry ;  so  he  was  compelled  to  pay  seven 
out  of  his  ten  dollars  to  have  them  taken  to  an  old  adobe 
building,  where  a  room  was  secured,  about  ten  feet  long 
by  eight  wide,  for  thirty-five  dollars  a  week.  Two  of  his 
fellow-passengers  shared  it  with  him.  They  took  the  bed, 
and  he  took  the  floor.  The  next  morning  he  started  out 
early  with  three  dollars  in  his  pocket,  and  hunted  up  a 
restaurant,  and  ordered  the  cheapest  breakfast  to  be  had; 
it  cost  two  dollars;  so  that  when  he  began  his  career  in 
California  he  had,  as  a  capital  to  start  on,  exactly  one 
dollar!  But  he  did  not  abate  a  jot  of  heart  or  hope.  In 
after  years,  when  he  could  smile  at  his  early  fortunes,  he 
loved  to  recount  these  first  experiences.*  He  said: 

"I  was  in  no  respect  despondent  over  my  financial  condition. 
It  was  a  beautiful  day,  much  like  an  Indian-summer  day  in  the 
East,  but  finer.  There  was  something  exhilarating  and  exciting 
in  the  atmosphere  which  made  everybody  cheerful  and  buoyant. 
As  I  walked  along  the  streets,  I  met  a  great  many  persons  I  had 
known  in  New  York,  and  they  all  seemed  to  be  in  the  highest 

*His  friends  in  California,  many  of  whom  had  been,  like  himself, 
among  the  pioneers  of  '49,  were  as  fond  of  hearing  as  he  could  be  of  re- 
lating his  adventures,  and  often  urged  him  to  put  them  on  record  before 
he  and  they  should  pass  away.  This  he  long  refused.  But  once,  when 
in  San  Francisco,  lie  was  persuaded  to  dictate  some  of  them  to  a  reporter, 
who  took  them  down  in  shorthand,  and  afterwards  wrote  them  out.  In 
the  course  of  successive  conversations  they  grew  into  a  volume,  which 
was  printed  privately  for  his  friends  under  the  title  "Personal  Reminis- 
cences of  Early  Days  in  California."  It  reads  more  like  a  tale  of  fiction 
than  of  sober  reality.  Though  related  in  familiar  style,  as  one  tells  a 
story  to  a  group  of  friends,  it  is  a  thrilling  narrative,  full  of  excitement 
and  adventure,  and  full  also  of  dangers,  from  coming  in  conflict  with 
desperate  men,  that  could  only  be  met  with  the  greatest  personal  courage. 
To  some  of  these  incidents  we  may  refer  hereafter,  though  it  can  only  be 
a  passing  allusion,  as  we  must  reserve  what  space  we  have  to  speak  of 
his  work  as  a  legislator  and  a  judge. 


13 

spirits.  Every  one  in  greeting  me  said, '  It  is  a  glorious  country/ 
or  *  Isn't  it  a  glorious  country?'  or  'Did  you  ever  see  a  more 
glorious  country?'  or  something  to  that  effect.  In  every  case  the 
word  'glorious'  was  sure  to  come  out.  There  was  something  in- 
fectious in  the  use  of  the  word,  or  rather  in  the  feeling  which 
made  its  use  natural.  I  had  not  been  out  many  hours  that  morn- 
ing before  I  caught  the  infection ;  and  though  I  had  but  a  single 
dollar  in  my  pocket  and  no  business  whatever,  and  did  not  know 
where  I  was  to  get  the  next  meal,  I  found  myself  saying  to  every- 
body I  met,  '  It  is  a  glorious  country.' 

"  The  city  presented  an  appearance  which,  to  me,  who  had 
witnessed  some  .curious  scenes  in  the  course  of  my  travels,  was 
singularly  strange  and  wild.  The  bay  then  washed  a  portion 
of  the  east  side  of  what  is  now  Montgomery  street,  one  of  the 
principal  streets  of  the  city ;  and  the  sides  of  the  hills  sloping 
back  from  the  water  were  covered  with  buildings  of  various  kinds, 
some  just  begun,  a  few  completed — all,  however,  of  the  rudest 
sort,  the  greater  number  being  merely  canvas  sheds.  The  streets 
were  filled  with  people,  it  seemed  to  me,  from  every  nation  under 
heaven,  all  wearing  their  peculiar  costumes.  The  majority  of 
them  were  from  the  States ;  and  each  State  had  furnished  speci- 
mens of  every  type  within  its  borders.  Every  country  of  Europe 
had  its  representatives;  and  wanderers  without  a  country  were 
there  in  great  numbers.  There  were  also  Chileans,  Sonorians, 
Kanakas  from  the  Sandwich  Islands  and  Chinese  from  Canton 
and  Hong  Kong.  All  seemed,  in  hurrying  to  and  fro,  to  be  busily 
occupied  and  in  a  state  of  pleasurable  excitement.  Everything 
needed  for  their  wants,  food,  clothing,  and  lodging-quarters,  and 
everything  required  for  transportation  and  mining,  were  in  urgent 
demand  and  obtained  extravagant  prices.  Yet  no  one  seemed  to 
complain  of  the  charges  made.  There  was  an  apparent  disdain 
of  all  attempts  to  cheapen  articles  and  reduce  prices.  News  from 
the  East  was  eagerly  sought  from  all  new-comers.  Newspapers 
from  New  York  were  sold  at  a  dollar  apiece.  I  had  a  bundle  of 
them,  and  seeing  the  price  paid  for  such  papers,  I  gave  them  to  a 
fellow-passenger,  telling  him  he  might  have  half  he  could  get  for 
them.  There  were  sixty-four  numbers,  if  I  recollect  right,  and 
the  third  day  after  our  arrival,  to  my  astonishment,  he  handed 
me  thirty-two  dollars,  stating  that  he  had  sold  them  all  at  a  dollar 
apiece.  Nearly  everything  else  brought  a  similarly  extravagant 
price." 


14 

His  fortunes  were  further  recruited  by  the  proceeds  of 
a  note  of  over  $400,  which  his  brother  Dudley  had  given 
him  against  a  man  who,  having  prospered  in  his  new. 
home,  paid  it  promptly.  As  the  new-comer  handled  the 
money  in  Spanish  doubloons,  he  felt  rich.  With  this 
start  he  opened  an  office  in  San  Francisco,  but  had  only 
received  his  first  fee  when  the  excitement  about  gold  in 
the  interior  led  him  to  abandon  the  city  and  take  a 
steamer  up  the  Sacramento  River,  then  in  its  annual  flood, 
to  a  point  which,  being  at  the  junction  of  two  rivers,  the 
Feather  and  the  Yuba,  seemed  a  natural  site  for  a  town, 
and  where  already  some  hundreds  of  people  had  pitched 
their  tents  upon  the  bank.  Two  of  the  proprietors  were 
French  gentlemen,  who  were  delighted  when  they  found 
he  could  speak  French,  and  insisted  on  showing  him  the 
town  site.  It  was  a  beautiful  spot,  covered  with  live-oak 
trees  that  reminded  him  of  the  oak  parks  of  England. 
He  saw  at  once  that  the  place,  from  its  position  at  the 
head  of  river  navigation,  was  destined  to  become  an  im- 
portant depot  for  the  neighboring  mines,  and  that  its 
beauty  and  healthfulness  would  render  it  a  pleasant  place 
for  residence.  Here  accordingly  he  pitched  his  tent,  and 
was  to  spend  the  next  seven  years. 

As  may  well  be  supposed,  life  in  this  new  settlement 
was  very  primitive.  Besides  the  old  adobe  of  the  original 
settler,  there  was  only  one  house.  The  new-comers  slept 
in  tents  or  under  the  open  sky.  But  this  was  the  least  of 
their  anxieties.  The  constitution  of  the  State,  adopted 
the  previous  year,  was  not  framed  by  a  convention  con- 
vened by  the  authority  of  Congress,  and,  for  that  reason, 
great  doubt  of  its  validity  and  of  legislation  under  its 
provisions  was  entertained  by  many  of  the  immigrants. 
Among  those  who  were  then  at  the  new  settlement,  there 
was  no  recognized  official  authority;  indeed,  there  were 
no  officers  of  the  government  created  under  that  constitu- 
tion, and  there  was  no  protection  for  life  or  property  ex- 
cept the  instinct  of  self-preservation  which  leads  men  to 


15 

.combine  to  protect  one  another.  To  create  something  like 
civil  order  in  this  settlement,  the  first  thing  was  to  or- 
ganize a  temporary  local  government.  So  some  of  the 
leading  settlers  assembled  on  the  evening  of  the  17th  of 
January  (1850),  and  christening  the  place  with  a  name — 
that  of  Marysville,  in  honor  of  the  only  woman  in  the 
place,  the  wife  of  one  of  the  proprietors  of  the  town — 
they  agreed  to  call  a  public  meeting  of  citizens  of  the 
settlement  the  next  day  to  consider  the  question  of 
establishing  a  town  government.  Accordingly,  on  the 
following  morning,  the  18th  of  January,  such  public 
meeting  was  held  in  front  of  the  Adobe  House,  the  only 
substantial  building  of  the  place,  except  the  one  hastily 
thrown  up  the  day  before,  and  it  was  there  resolved 
that  a  town  government  should  be  established,  and  for 
that  purpose  that  there  should  be  elected  a  town  council 
— an  ayuntamiento  in  Spanish  phrase — and  a  first  and 
second  alcalde  (the  latter  to  act  in  the  absence  or  sick- 
ness of  the  former),  and  a  marshal;  and  they  proceeded 
at  once  to  carry  the  resolution  into  effect.  In  the  after- 
noon of  the  same  day  the  election  took  place.  To  the 
position  of  first  alcalde  Mr.  Field  was  chosen.  Under 
the  Mexican  law  an  alcalde  was  an  officer  of  very  limited 
jurisdiction;  but  in  the  anomalous  condition  of  affairs  in 
California  at  this  time,  he  was  called  upon  to  exercise, 
and  did  exercise,  very  great  powers.  Mr.  Field,  therefore, 
became  at  once  the  centre  of  authority,  around  whom  the 
elements  of  society  could  crystallize.  He  was  the  chief 
magistrate  in  the  newly-formed  community,  and  had  use 
for  all  his  powers,  since  along  with  the  respectable,  the 
orderly,  and  the  law-abiding  class  of  people  there  was  a 
great  number  of  disreputable  characters — gamblers  and 
desperadoes,  the  refuse  of  older  communities — who  had 
to  be  held  in  check  with  a  firm  hand.  They  soon  found 
that  there  was  an  authority  with  which  they  could  not 
trifle.  Thus,  a  man  was  accused  of  having  committed  a 
•robbery — of  having  stolen  gold  dust  out  of  the  tent  of  a 


16 

miner.  He  was  arrested  and  carried  before  the  alcalde. 
After  hearing  a  statement  of  the  alleged  facts,  the  alcalde 
directed  that  a  grand  jury  should  be  immediately  sum- 
moned to  consider  the  case,  and  in  a  very  short  time  its 
members  assembled,  and,  after  hearing  the  evidence,  re- 
ported that  a  burglary  had  been  committed,  and  formally 
accused  the  prisoner.  A  petty  jury  was  'thereupon  at 
once  called,  and  the  prisoner  put  upon  his  trial,  an  attor- 
ney having  been  first  appointed  by  the  alcalde  to  defend 
him.  The  trial  did  not  last  long,  and  the  prisoner  was 
convicted,  the  evidence  being  clear  and  conclusive.  A 
portion  of  the  gold  dust  stolen  was  found  upon  him. 
The  whole  preceding,  from  the  arrest  of  the  prisoner  to 
his  conviction,  occupied  only  a  part  of  a  day.  What 
should  be  done  with  the  convict  then  became  a  serious 
subject  of  consideration.  There  was  no  jail  to  hold  pris- 
oners, and  the  sheriff  could  not  be  kept  standing  guard 
over  him.  Nor  could  he  be  sent  to  San  Francisco  but  at 
great  expense.  If  he  had  been  turned  over  to  the  crowd, 
they  would  have  hung  him  without  hesitation  to  the 
nearest  tree.  The  judgment  of  the  alcalde  was  more 
merciful,  though  not  less  swift  and  effective.  It  was  as 
all  punishment  of  crime  ought  to  be,  sharp  and  stinging. 
The  thief  was  sentenced  to  be  publicly  whipped  with  fifty 
lashes  on  his  bare  back,  with  a  clause  added  that  if  he 
were  found  within  the  next  two  years  in  the  vicinity  of 
Marysville  he  should  be  again  whipped.  The  marshal 
of  the  court  immediately  marched  him  to  a  tree  in  the 
public  plaza  and  inflicted  the  sentence,  the  alcalde  pri- 
vately ordering  a  physician  to  be  present  so  as  to  see  that 
no  unnecessary  severity  was  practiced.  That  was  the  last 
seen  of  the  fellow  in  that  region.  The  Judge,  in  his 
"Reminiscences,"  remarks  that  the  latter  part  of  the  sen- 
tence was  unnecessary,  for  there  was  something  so  de- 
grading in  a  public  whipping  that  he  had  never  known 
a  man  thus  whipped  who  would  stay  at  the  place  longer 
than  he  could  help,  or  ever  desired  to  return.  By  the 


17 

sentence  inflicted  the  sense  of  justice  of  the  community 
was  satisfied  and  while  no  blood  was  shed,  or  hanging 
done,  a  severe  public  example  was  given. 

Thus  the  alcalde  did  not  bear  rule  in  vain.  A  few  in- 
stances of  such  wholesome  severity  quelled  the  spirit  of 
lawlessness,  and  established  order  in  the  community.  A 
good  many  bad  characters  hung  about  the  place,  and 
gambling  shops  were  open;  but  deeds  of  violence  were 
effectually  repressed,  and  during  the  whole  time  that  he 
bore  rule  this  settlement  was  as  peaceful  as  a  New  Eng- 
land village.  Sometimes  he  had  more  pleasing  duties 
than  that  of  trying  criminals  and  inflicting  punishment. 
In  one  case  a  husband  and  wife  came  to  him  bitterly  com- 
plaining of  each  other,  and  demanding  an  immediate 
divorce.  Then  the  good  alcalde  forgot  his  office  as  a 
magistrate,  and  tried  to  interpose  as  a  pacificator  and 
friend,  which  he  did  with  such  good  effect  that  they  prom- 
ised .to  kiss  and  forgive  each  other,  and  departed  arm  in 
arm,  to  live  in  peace  and  love  forever  after,  amid  the  cheers 
of  the  large  audience  that  had  gathered  by  the  novel  pro- 
ceeding at  the  alcalde's  office. 

As  chief  magistrate  he  had  the  general  superintendence 
over  matters  affecting  the  public  interests  of  the  town. 
He  had  the  banks  of  the  Yuba  River  graded  so  as  to  facili- 
tate the  landing  from  steamers  and  other  vessels.  He 
established  a  night  police,  and  kept  the  record  of  deeds  of 
real  property. 

This  efficient  rule  of  the  alcalde  was  of  course  but  tem- 
porary. It  ceased  as  the  new  State  government  went  into 
operation,  and  its  officers  appeared  and  took  the  place  of 
officials  with  Spanish  titles  and  unlimited  powers.  The 
change  was  no  doubt,  on  the  whole,  a  benefit,  although 
in  some  cases  it  was  quite  the  contrary,  as  in  the  haste  of 
organization  some  very  unfit  men  were  appointed  to  posi- 
tions in  which  their  power  for  mischief  was  great.  Thus 
of  the  District  Court,  whose  territorial  jurisdiction  em- 
braced Yuba  County,  a  lawyer  from  Texas,  who  was  a 

3 


18 

bully  of  the  lowest  type,  was  appointed  judge.  A  drunk- 
ard, he  often  appeared  in  court  in  a  state  of  intoxication, 
and  by  his  vulgar  and  brutal  manners  created  very  general 
disgust.  He  took  a  hatred  to  Mr.  Field,  and  even  threat- 
ened personal  violence,  so  that  the  latter  always  went 
armed,  and  the  former,  in  consequence,  confined  himself 
to  swaggering  and  bluster.  But  the  annoyance  did  not 
continue  long.  In  the  fall  of  that  year  Mr.  Field  was 
elected  a  member  of  the  Legislature,  and  secured  a  reor- 
ganization of  the  judicial  district,  by  which  this  model 
judge  was  sent  off  to  the  extreme  northern  part  of  the 
State,  where  at  the  time  there  were  few  inhabitants  and 
little  litigation.  For  some  years  he  continued  on  the  bench , 
but  his  ungovernable  passions  and  habits  of  intoxication 
finally  led  to  a  movement  for  his  impeachment,  when  he 
resigned,  and  soon  afterwards  died. 

The  nomination  to  the  Legislature  introduced  Mr.  Field 
to  a  new  experience.  Every  candidate  had  to  make  the 
canvass  for  himself;  it  did  not  do  to  stand  upon  his 
dignity.  The  people  did  not  know  him,  and  an  Eastern 
reputation  counted  for  little  in  the  mining  gulches  of 
California.  He  had  to  mount  his  horse,  like  a  Methodist 
circuit-rider,  and  ride  from  camp  to  camp,  speaking  to 
the  people  wherever  he  could  find  them — in  the  oak 
grove,  under  the  shade  of  trees,  or  by  the  river-side,  where 
they  washed  for  gold.  In  this  way  he  saw  a  great  deal 
of  the  rough  life  of  the  border,  and  had  many  a  novel, 
and  sometimes  a  touching,  experience.  A  single  incident, 
which  is  related  in  the  "  Personal  Reminiscences,"  is  given 
in  the  note  below.* 

*I  witnessed  some  strange  scenes  during  the  campaign,  which  well 
illustrated  the  anomalous  condition  of  society  in  the  country.  I  will 
mention  one  of  them.  As  I  approached  Grass  Valley,  then  a  beautiful 
spot  among  the  hills,  occupied  principally  by  Mr.  Walsh,  a  name  since 
become  familiar  to  Califoruians,  I  came  to  a  building  by  the  wayside,  a 
small  lodging  house  and  drinking  saloon,  opposite  to  which  a  lynch  jury 
were  sitting,  trying  a  man  upon  a  charge  of  stealing  gold  dust.  I  stopped 
and  watched  for  awhile  the  progress  of  the  trial.  On  an  occasion  of 


19 

The  experience  of  this  campaign  was  useful  in  other 
ways.  In  the  mining  camps  he  learned  the  rules  by  which 
the  miners  regulated  their  claims,  and  their  relations  with 
each  other — rules  which  he  was  soon  to  lift  into  dignity 
by  giving  them  the  force  of  positive  law. 

The  Legislature  met  in  San  Jose,  then  the  capital  of  the 
State,  on  the  first  Monday  of  January,  1851.  The  Legis- 
lature of  the  previous  year  had  done  much,  but  it  left 
much  more  to  be  done  by  its  successor.  There  was  an 
immense  work  on  its  hands  in  framing  laws  required  by 
the  conditions  of  the  State,  which  had  recently  come  into 
existence,  but  destined  to  a  magnificent  future.  Here  Mr. 

some  little  delay  iu  the  proceedings  I  mentioned  to  those  present,  the 
jury  included,  that  I  was  a  candidate  for  the  Legislature,  and  that  I 
would  be  glad  if  they  would  join  me  in  a  glass  in  the  saloon,  an  invita- 
tion which  was  seldom  declined  iu  those  days.  It  was  at  once  accepted, 
and,  leaving  the  accused  iu  the  hands  of  an  improvised  constable,  the 
jury  entered  the  house  and  partook  of  the  drinks  which  its  bar  afforded. 
I  had  discovered,  or  imagined  from  the  appearance  of  the  prisoner,  that 
he  had  been  familiar  in  other  days  with  a  very  different  life  from  that 
of  California,  and  my  sympathies  were  moved  towards  him.  So,  after 
the  jurors  had  taken  their  drinks  and  were  talking  pleasantly  together, 
I  slipped  out  of  the  building,  and,  approaching  the  man,  said  to  him: 
"What  is  the  case  against  you?  Can  I  help  you?"  The  poor  fellow 
looked  up  to  me  and  his  eyes  filled  with  great  globules  of  tears  as  he 
replied,  "I  am  innocent  of  all  I  am  charged  with.  I  have  never  stolen 
anything  nor  cheated  any  one;  but  I  have  no  one  here  to  befriend  me." 
That  was  enough  for  me.  Those  eyes,  filled  as  they  were,  touched  my 
heart.  I  hurried  back  to  the  saloon,  and,  as  the  jurors  were  standing 
about  chatting  with  each  other,  I  exclaimed:  "How  is  this?  You  have 
not  had  your  cigars?  Mr.  Barkeeper,  please  give  the  gentlemen  the  best 
you  have  ;  and,  besides,"  I  added,  "  let  us  have  another  '  smjle' — it  is  not 
often  you  have  a  candidate  for  the  Legislature  among  you."  A  laugh 
followed,  and  a  ready  acceptance  was  given  to  the  invitation.  In  the 
meantime  my  eyes  rested  upon  a  benevolent-looking  man  among  the 
jury,  and  I  singled  him  out  for  conversation.  I  managed  to  draw  him 
aside,  and  inquired  what  State  he  came  from.  He  replied,  from  Connec- 
ticut. I  then  asked  if  his  parents  lived  there.  He  answered,  with  a 
faltering  voice,  "My  father  is  dead;  my  mother  and  sister  are  there." 
I  then  said,  "  Your  thoughts,  I  dare  say,  go  out  constantly  to  them,  and 
you  ofteu  write  to  them,  of  course."  His  eyes  glistened,  and  I  saw  pearl- 
like  dewdrops  gathering  in  them — his  thoughts  were  carried  over  the 


20 

Field  found  himself  at  home.  As  a  diligent  student  of 
law  for  many  years,  he  had  become  familiar  with  the  Civil 
and  Criminal  Codes  and  the  Codes  of  Procedure  at  the 
East,  and  now  had  opportunity  to  turn  to  account  the 
results  of  long  study,  aided  by  experience  and  observa- 
tion. He  at  once  took  a  leading  position  in  the  Legisla- 
ture, and,  it  is  said  by  those  familiar  with  the  history  of 
that  body,  did  more  towards  framing  the  laws  of  California 
than  any  other  individual. 

He  at  once  directed  special  attention  to  legislation  for 
the  protection  of  miners.  California  was  a  mining  State. 
The  vast  immigration  from  the  East  had  come  in  search 

mountains  to  his  old  home.  "  Ah,  my  good  friend,"  I  added,  "  how  their 
hearts  must  rejoice  to  hear  from  you!"  Then,  after  a  short  pause,! 
remarked,  "What  is  the  case  against  your  prisoner?  He,  too,  perhaps* 
may  have  a  mother  and  sister  in  the  East,  thinking  of  him  as  your 
mother  and  sister  do  of  you,  and  wondering  when  he  will  come  back. 
For  God's  sake  remember  this!"  The  heart  of  the  good  man  responded 
in  a  voice  which,  even  to  this  day — now  nearly  thirty  years  past — sounds 
like  a  delicious  melody  in  my  ears:  "I  will  do  so!  "  Passing  from  him 
I  went  to  the  other  jurors,  and,  finding  they  were  about  to  go  back  to 
the  trial,  I  exclaimed,  "Don't  be  in  a  hurry,  gentlemen;  let  us  take 
another  glass."  They  again  acceded  to  my  request,  and,  seeing  that  they 
were  a  little  mellowed  by  their  indulgence,  I  ventured  to  speak  about 
the  trial.  I  told  them  that  the  courts  of  the  State  were  organized,  and 
there  was  no  necessity  or  justification  now  for  lynch  juries;  that  the 
prisoner  appeared  to  be  without  friends,  and  I  appealed  to  them,  as  men 
of  large  hearts,  to  think  how  they  would  feel  if  they  were  accused  of 
crime  where  they  had  no  counsel  and  no  friends.  "  Better  send  him, 
gentlemen,  to  Marysville  for  trial,  and  keep  your  own  hands  free  from 
stain."  A  pause  ensued  ;  their  hearts  were  softened;  and,  fortunately, 
a  man  going  to  Marysville  with  a  wagon,  coming  up  at  this  moment,  I 
prevailed  upon  them  to  put  the  prisoner  in  his  charge  to  be  taken  there. 
The  owner  of  the  wagon  consenting,  they  swore  him  to  take  the  prisoner 
to  that  place  and  deliver  him  over  to  the  sheriff,  and  to  make  sure  that 
he  would  keep  the  oath,  I  handed  him  a  "  slug,"  a  local  coin  of  octagonal 
form,  of  the  value  of  fifty  dollars,  issued  at  that  time  by  assayers  in  San 
Francisco.  We  soon  afterwards  separated.  As  I  moved  away  on  my 
horse  my  head  swam  a  little,  but  my  heart  was  joyous.  Of  all  things 
which  I  can  recall  of  the  past,  this  is  one  of  the  most  pleasant.  I  believe 
I  saved  the  prisoner's  life,  for  in  those  days  there  was  seldom  any  escape 
for  a  person  tried  by  a  lynch  jury. 


21 

of  gold.  This  was  for  the  moment  the  great  interest  of 
the  State,  and  the  miners  the  most  important  class  of  the 
population.  Here  Mr.  Field  turned  to  account  his  recent 
experience.  He  had  been  among  the  miners.  He  had 
slept  in  their  tents  and  their  cabins,  and  sat  by  their  camp- 
fires,  listening  to  the  tales  of  their  adventures.  He  had 
learned  something  of  the  rules  by  which  they  were  gov- 
erned— rules  by  which  he  perceived  that  justice  was  prac- 
tically administered.  He  saw  that  it  would  never  do  to 
undertake  to  override  these  regulations  by  a  set  of  arbi- 
trary laws,  framed  at  a  distance,  by  men  ignorant  of  their 
peculiar  conditions.  The  attempt  to  impose  such  an 
authority  would  be  extremely  impolitic;  it  would  pro- 
voke resistance;  a  conflict  would  be  inevitable;  and  what 
was  far  more  important  in  his  view,  it  would  be  cruelly 
unjust.  The  miners,  who  at  great  hardship  and  peril  had 
sought  out  the  places  where  gold  was  hidden  in  the  beds 
of  rivers  and  in  the  rocks  of  the  mountains,  had  rights 
which  could  not  be  ignored.  The  wise  course  was  to  give 
the  sanction  of  law  to  the  rules  which  they  had  made  for 
themselves.  Then  they  could  not  complain  of  injustice 
when  bound  by  the  laws  which  they  had  framed  for  their 
own  protection.  Accordingly  at  an  early  stage  of  the  ses- 
sion he  introduced  the  following  provision,  which  through 
his  advocacy  was  adopted  and  incorporated  into  a  general 
statute  regulating  proceedings  in  civil  cases  in  the  courts 
of  the  State: 

"  In  actions  respecting  '  Mining  Claims '  proof  shall  be  admitted 
of  the  customs,  usages,  or  regulations  established  and  in  force  at 
the  bar,  or  diggings  embracing  such  claims;  and  such  customs, 
usages,  or  regulations,  when  not  in  conflict  wjth  the  Constitution 
and  laws  of  this  State,  shall  govern  the  decision  of  the  action." 

These  five  lines  contain,  as  the  acorn  contains  the  oak, 
the  germinal  principle  of  a  whole  code  of  wise  and  benefi- 
cent legislation.  The  great  principles  of  law,  being 
founded  in  natural  justice,  are  always  simple,  and  yet 
simple  as  this  was,  no  one  had  had  the  sagacity  to  per- 


22 

ceive  or  the  courage  to  propose  it;  but  once  proposed  and 
adopted,  it  solved  all  difficulties,  and  smoothed  the  way 
to  peace  in  all  the  borders  of  the  Golden  State.  Its  prin- 
ciple was  afterwards  adopted  by  other  mining  regions, 
and  finally  by  the  Congress  of  the  United  States.  Its 
wisdom  has  been  proved  by  thirty  years  of  experience. 
For  this  single  act,  says  a  California  writer,  "the  people 
of  this  State  and  of  Nevada  should  ever  hold  the  author 
in  grateful  remembrance.  When  they  think  of  him  only 
as  a  judge  deciding  upon  the  administration  of  laws 
framed  by  others,  let  them  be  reminded  that  in  a  single 
sentence  he  laid  the  foundation  of  our  mining  system  so 
firmly  that  it  has  not  been,  and  cannot  be,  disturbed." 
Years  after,  when  Mr.  Field  became  a  Justice  of  the  Su- 
preme Court  of  the  United  States,  he  commented,  in  an 
opinion  in  an  important  case,  upon  the  usages  and  regu- 
lations of  miners,  to  which  this  legislation  gave  the  force 
of  law,  and  upon  the  vast  benefits  of  that  legislation. 
An  extract  from  that  opinion  is  given  in  a  note  below.* 

*  "The  discovery  of  gold  in  California  was  followed,  as  is  well  known, 
by  an  immense  immigration  into  the  State,  which  increased  its  popula- 
tion within  three  or  four  years  from  a  few  thousand  to  several  hundred 
thousand.  The  lands  in  which  the  precious  metals  were  found  belonged 
to  the  United  States,  and  were  unsurveyed,  and  not  open,  by  law,  to 
occupation  and  settlement.  Little  was  known  of  them  further  than  that 
they  were  situated  in  the  Sierra  Nevada  Mountains.  Into  these  moun- 
tains the  immigrants  in  vast  numbers  penetrated,  occupying  the  ravines, 
gulches,  and  canons,  and  probing  the  earth  in  all  directions  for  the 
precious  metals.  Wherever  they  went  they  carried  with  them  that  love 
of  order  and  system  and  of  fair  dealing  which  are  the  prominent  charac- 
teristics of  our  people.  In  every  district  which  they  occupied  they 
framed  certain  rules  for  their  government,  by  which  the  extent  of  ground 
they  could  severally  hold  for  mining  was  designated,  their  possessory 
right  to  such  ground  secured  and  enforced,  and  contests  between  them 
either  avoided  or  determined.  These  rules  bore  a  marked  similarity, 
varying  in  the  several  districts  only  according  to  the  extent  and  char- 
acter of  the  mines,  distinct  provisions  being  made  for  different  kinds  of 
mining,  such  as  placer  mining,  quartz  mining,  and  mining  in  drifts  or 
tunnels.  They  all  recognized  discovery  followed  by  appropriation  as  the 
foundation  of  the  possessor's  title,  and  development  by  working  as  the 


23 

Of  the  provision  of  law  cited,  Professor  Pomeroy,  in 
his  sketch  of  the  work  of  Judge  Field,  after  speaking  of 
its  far-sighted  sagacity,  expediency,  and  wisdom,  as  estab- 
lished by  the  experience  of  thirty  years  throughout  all  the 
Pacific  mining  States  and  Territories,  says:  "I  therefore 
venture  the  opinion,  and  think  that  its  correctness  can- 
not be  questioned,  that  no  single  act  of  creative  legisla- 
tion, dealing  with  property  rights  and  private  interests, 
has  exceeded  this  one  in  importance  and  in  its  effects  in 
developing  the  industrial  resources  of  the  country.  The 

condition  of  its  retention.  And  they  were  so  framed  as  to  secure  to  all 
comers,  within  practicable  limits,  absolute  equality  of  right  and  privi- 
lege in  working  the  mines.  Nothing  but  such  equality  would  have  been 
tolerated  by  the  miners,  who  were  emphatically  the  law-makers,  as  re- 
spects mining,  upon  the  public  lands  in  the  State.  The  first  appropriator 
was  everywhere  held  to  have,  within  certain  well-defined  limits,  a  better 
right  than  others  to  the  claims  taken  up  ;  and  in  all  controversies,  except 
as  against  the  government,  he  was  regarded  as  the  original  owner,  from 
whom  title  was  to  be  traced.  But  the  mines  could  not  be  worked  with- 
out water.  Without  water  the  gold  would  remain  forever  buried  in  the 
earth  or  rock.  To  carry  water  to  mining  localities,  when  they  were  not 
on  the  banks  of  a  stream  or  lake,  became,  therefore,  an  important  and 
necessary  business  in  carrying  on  mining.  Here,  also,  the  first  appro- 
priator of  water  to  be  conveyed  to  such  localities,  for  mining  or  other 
beneficial  purposes,  was  recognized  as  having,  to  the  extent  of  actual 
use,  the  better  right.  The  doctrines  of  the  common  law  respecting  the 
rights  of  riparian  owners  were  not  considered  as  applicable,  or  only  in  a 
very  limited  degree,  to  the  condition  of  miners  in  the  mountains.  The 
waters  of  rivers  and  lakes  were  consequently  carried  great  distances  in 
ditches  and  flumes,  constructed  with  vast  labor  and  enormous  expendi- 
tures of  money,  along  the  sides  of  mountains  and  through  canons  and 
ravines,  to  supply  communities  engaged  in  mining,  as  well  as  for  agricul- 
turists and  ordinary  consumption.  Numerous  regulations  were  adopted, 
or  assumed  to  exist  from  their  obvious  justness,  for  the  security  of  these 
ditches  and  flumes,  and  the  protection  of  rights  to  water,  not  only  be- 
tween different  appropriators,  but  between  them  and  the  holders  of 
mining  claims.  These  regulations  and  customs  were  appealed  to  in  con- 
troversies in  the  State  courts,  and  received  their  sanction  ;  and  properties 
to  the  value  of  many  millions  rested  upon  them.  For  eighteen  years, 
from  1848  to  1866,  the  regulations  and  customs  of  miners,  as  enforced 
and  moulded  by  the  courts,  and  sanctioned  by  the  legislation  of  the 
State,  constituted  the  law  governing  property  in  mines  and  in  water  on 
the  public  mineral  lands."  ( Jennison  v.  Kirk,  98  U.  S.  457.) 


24 

causes  which  led  to  its  enactment,  its  simple  but  efficient 
nature,  and  its  beneficial  consequences,  cannot  be  better 
described  than  in  the  language  of  Judge  Field  himself, 
in  an  opinion,"  from  which  we  have  given  an  extract  in  a 
note.  And  he  adds:  "This  enactment  gave  the  force  of 
law  to  an  equitable  system  of  mining  and  water  regula- 
tions, and  has  been  the  direct  means  of  promoting  and 
protecting  an  industry  which  has  secured  and  added  an 
untold  amount  to  the  total  wealth  and  resources  of  the 
country.  I  cannot  leave  this  subject  without  a  brief 
comment  upon  the  social  events  themselves  which  I  have 
T^een  describing — events  unexampled,  I  think,  in  the  his- 
tory of  any  other  people.  The  whole  conduct  of  the 
miners,  their  voluntary  adoption,  in  the  absence  of  all 
municipal  law,  of  regulations  so  just,  wise,  and  equitable 
that  neither  the  State  nor  the  national  government  has 
attempted  to  improve  them,  exhibits  in  the  most  striking 
manner  those  qualities  which  lie  at  the  basis  of  the  Amer- 
ican character.  So  long  as  these  qualities  last,  so  long  as 
American  citizens,  individually  or  collected  into  commu- 
nities, possess  and  act  upon  these  conservative  tendencies, 
the  liberties,  safety,  and  perpetuity  of  the  nation  rest  upon 
a  certain  and  immovable  foundation." 

Next  to  the  miners,  and  forming  a  large  part  of  them, 
was  another  class  requiring  protection — that  of  poor 
debtors.  Of  the  thousands  who  rushed  to  California  in 
the  early  days,  a  large  proportion  were  men  who  had  met 
with  reverses  of  fortune  in  the  older  States.  Many  were 
utterly  broken  down;  and, sick  at  heart, and  often  sick  in 
body,  they  had  sought  a  new  field  in  hope  to  begin  life 
anew.  It  was  all-important  that  they  should  not  have 
their  hands  tied  at  the  very  beginning;  that  they  should 
not  find,  on  landing  in  their  new  home,  that  they  were 
pursued  by  prosecutions,  and  their  little  means  taken 
from  them.  In  the  older  States  there  were  laws  exempt- 
ing certain  effects  of  a  debtor.  But  these  exemptions 
were  very  small.  The  workers  who  had  come  to  build 


25 

up  an  empire  on  the  Pacific  Coast  needed  something 
more.  Strong-limbed  mechanics  might  as  well  be  bound 
in  hands  and  feet  as  deprived  of  tools  to  work  with. 
The  farmer  needed  his  plow  and  his  oxen,  the  surgeon 
his  instruments,  and  the  lawyer  his  library.  To  meet  all 
these  cases,  Mr.  Field  drew  a  provision  more  comprehen- 
sive than  had  ever  been  framed  before,  exempting  from 
forced  sale  under  execution  the  following  property  of 
judgment  debtors,  except  where  the  judgment  was  recov- 
ered for  the  purchase-money  of  the  articles,  viz: 

"  1.  Chairs,  tables,  desks,  aud  books,  to  the  value  of  one  hun- 
dred dollars. 

"  2.  Necessary  household,  table,  and  kitchen  furniture,  includ- 
ing stove,  stove-pipe,  and  stove  furniture,  wearing  apparel,  beds, 
bedding,  and  bedsteads,  and  provisions  actually  provided  for  in- 
dividuals or  family  use  sufficient  for  one  month. 

"3.  Farming  utensils,  or  implements  of  husbandry;  also  two 
oxen,  or  two  horses,  or  two  mules,  and  their  harness,  and  one  cart 
or  wagon,  and  food  for  such  oxen,  horses,  or  mules  for  one  month. 

"  4.  The  tools  and  implements  of  a  mechanic  necessary  to  carry 
on  his  trade,  the  instruments  and  chests  of  a  surgeon,  physician, 
surveyor,  and  dentist,  necessary  to  the  exercise  of  their  professions, 
with  their  professional  library,  and  the  law  libraries  of  an  attor- 
ney or  counsellor. 

"  5.  The  tent  and  furniture,  including  a  table,  camp-stools,  bed 
and  bedding,  of  a  miner;  also  his  rocker,  shovels,  wheelbarrow, 
spade,  pumps,  and  other  instruments  used  in  mining,  with  provis- 
ions necessary  for  his  support  for  one  month. 

"  6.  Two  oxen,  or  two  horses,  or  two  mules,  and  their  harness, 
furniture,  and  one  cart  or  wagon,  by  the  use  of  which  a  cart  man, 
teamster,  or  other  laborer  habitually  earns  his  living;  and  food 
for  such  oxen,  horses,  or  mules  for  one  month ;  and  a  horse,  harness, 
and  vehicle  used  by  a  physician  or  surgeon  in  making  his  profes- 
sional visits. 

"  7.  All  arms  and  accoutrements  required  by  law  to  be  kept  by 
any  person." 

This  comprehensive  provision  spread  a  broad  shield  of 
protection  over  every  honest  man  who  was  willing  to 
work. 

4 


26 

"The  fundamental  principle  of  the  protection  proposed 
by  Mr.  Field,"  says  Professor  Pomeroy,  "  was,  that  every 
person,  in  addition  to  those  articles  necessary  for  individ- 
ual preservation,  such  as  clothing,  reasonable  household 
furniture  and  effects,  and  the  like,  should  be  secured  in 
the  possession  and  use  of  those  things  by  which,  as  neces- 
sary means  and  instruments,  he  pursues  his  profession, 
trade,  business,  or  calling,  whatever  it  may  be,  and 
acquires  the  ability  of  paying  the  demands  of  his  cred- 
itors. This  law,  therefore,  exempts,  not  only  household 
furniture  and  the  like,  but  the  implements,  wagons,  and 
teams  of  a  farmer,  the  tools  of  ,a  mechanic,  the  instru- 
ments of  a  surveyor,  surgeon,  and  dentist,  the  professional 
library  of  a  lawyer  and  a  physician,  the  articles  used  by 
the  miner,  the  laborer,  &c.  In  this  connection  it  should 
also  be  stated  that,  tnough  not  its  author,  Mr.  Field  was 
a  most  strenuous  supporter  of  the  Homestead  Bill,  and 
was  mainly  instrumental  in  extending  the  exemptions 
originally  proposed  from  three  thousand  to  five  thousand 
dollars.  At  that  time  there  was  no  exemption  whatever 
of  personal  property  in  California,  and  none  equally  ex- 
tensive to  be  found  in  the  previous  legislation  of  any  State 
of  the  Union.  It  is  understood  by  those  who  are  familiar 
with  Judge  Field  that  he  looks  back  with  greater  satisfac- 
tion upon  the  exemption  system  which  he  thus  created 
than  upon  any  other  of  his  legislative  work." 

Mr.  Field  was  a  member  of  the  Judiciary  Committee,  and 
his  work  naturally  related  mainly  to  the  administration 
of  justice.  "Among  the  most  important  of  the  measures 
drawn  up  by  him,"  says  Prof.  Pomeroy,*  "was  a  bill 
concerning  the  judiciary  of  the  State.  The  act  was 
general,  dealing  with  the 'whole  judicial  system,  and  re- 
quiring great  labor  in  its  preparation.  It  completely 

*  John  Norton  Pomeroy,  LL.D.,  Professor  of  Law  in  the  University  of 
California,  wrote  a  somewhat  elaborate  review  of  the  career  of  Judgo 
Field,  as  a  Legislator,  State  Judge,  and  Justice  of  the  Supreme  Court 
of  the  United  States,  from  which  the  above  is  taken. 


27 

i 
reorganized  the  judiciary,  and  defined  and  allotted  the 

jurisdiction,  powers,  and  duties  of  all  the  grades  of  courts 
and  judicial  officers.  An  act  passed  in  the  subsequent 
session  of  1853,  revising  and  amending  in  its  details  the 
original  statute  of  1851,  was  also  drawn  up  by  him, 
although  he  was  not  then  a  member  of  the  Legislature. 
The  system  then  planned  and  established  in  1851,  and 
improved  in  1853,  and  again  in  1862,  to  conform  to  the 
constitutional  amendments  of  the  previous  year,  was 
substantially  adopted  in  the  codes  of  1872,  and  continued 
in  operation  until  it  was  displaced  by  the  revolutionary 
changes  made  in  the  new  constitution  of  1879-'80.  In 
connection  with  this  legislation  affecting  the  judiciary,  he 
also  drafted  and  procured  the  passage  of  an  act  concern- 
ing county  sheriffs,  defining  all  their  official  functions 
and  duties;  an  act  concerning  county  recorders,  creating 
the  entire  system  of  registry  which  has  since  remained 
substantially  unaltered ;  and  an  act  concerning  attorneys 
and  counsellors  at  law,  by  which  their  duties  were  de- 
clared and  their  rights  were  protected  against  arbitrary 
proceedings  by  hostile  judges.  He  also  prepared  and 
introduced  two  separate  bills  to  regulate  the  civil  and 
criminal  practice.  These  acts  were  based  upon  the  Code 
of  Civil  Procedure  and  the  Code  of  Criminal  Procedure 
proposed  by  the  New  York  commissioners,  but  they  con- 
tained a  great  number  of  changes  and  additions  made 
necessary  by  the  provisions  of  the  California  Constitution, 
and  by  the  peculiar  social  condition  and  habits  of  the 
people.  They  were  by  no  means  bare  copies  taken  from 
the  New  York  codes,  since  Mr.  Field  altered  and  recon- 
structed more  than  three  hundred  sections,  and  added 
over  one  hundred  new  sections.  The  two  measures  were 
generally  designated  as  the  Civil  and  the  Criminal  Prac- 
tice Acts.  They  were  subsequently  adopted  by  the  other 
States  and  Territories  west  of  the  Rocky  Mountains. 
They  continued,  with  occasional  amendments,  in  force  in 
California  until  the  present  system  of  more  elaborate 


•       28 

codes  was  substituted  for  them  in  1872;  and  even  this 
change  was  more  in  name  than  in  substance,  since  all 
their  provisions  substantially  reappear  in  some -one  of 
these  codes." 

In  the  Civil  Practice  Act  he  incorporated  the  provisions 
above  mentioned  respecting  mining  claims,  and  exempt- 
ing certain  articles  of  property  of  judgment  debtors  from 
forced  sale  under  execution,  both  of  which  have  become 
permanent  features  of  the  legislative  policy  of  California. 

But  to  enumerate  all  the  acts  framed  by  this  indefati- 
gable legislator  would  require  us  to  write  the  history  of 
the  Legislature  itself  during  that  memorable  session. 
Says  one  who  was  familiar  with  all  the  steps  taken  in 
that  founding  of  a  Commonwealth: 

"The  session  of  1851  was  the  most  important  in  the  history  of 
the  State.  It  was  the  first  one  held  after  the  admission  of  Cali- 
fornia into  the  Union,  and  some  of  the  best  timbers  of  the  new 
governmental  structure  are  the  handiwork  of  Mr.  Field.  His 
labors  exhibited  great  devotion  to  the  public  service,  untiring 
industry,  and  a  high  sense  of  the  responsibility  of  a  public  officer. 
Many  bad  bills  were  defeated  through  his  influence  and  many 
defective  ones  amended  by  his  suggestions.  He  was  seldom 
absent  from  his  seat;  he  carefully  watched  all  measures;  and 
there  were  few  debates  in  which  he  did  not  participate.  Such  is 
the  universal  testimony  of  all  the  survivors  of  the  legislative  body 
of  1851,  and  its  truth  is  established  by  the  journal  of  the  assem- 
bly and  the  papers  of  the  time." 

At  the  close  of  the  Legislature,  Mr.  Field  returned  to 
Marysville.  He  had  added  to  his  reputation,  but  in  other 
respects  his  fortunes  were  at  a  low  ebb.  His  legal  prac- 
tice had  been  broken  up  by  a  ruffian  on  the  bench,  and 
he  was  as  poor  as  when  he  landed  in  San  Francico  with 
but  ten  dollars  in  his  pocket,  and  he  had  to  ask  credit 
for  a  week's  board.  But  this  judicial  ruffian  was  now 
gone,  and  he  had  at  last  a  clear  field  before  him,  and 
soon  the  same  ability  which  he  had  shown  in  the  Legis- 
lative Assembly  gave  him  a  conspicuous  place  at  the  bar. 
The  next  six  years,  which  were  devoted  to  his  profession 


29 

were  years  of  success  in  every  respect.  His  practice  be- 
came very  large.  Indeed,  one  who  watched  his  progress 
during  those  years  said:  "His  practice  was  as  extensive, 
and  probably  as  remunerative,  as  that  of  any  lawyer  in 
the  State."  The  same  careful  observer  thus  analyzed  the 
secret  of  his  success : 

"  He  was  distinguished  at  the  bar  for  his  fidelity  to  his  clients, 
for  untiring  industry,  great  care,  and  accuracy  in  the  preparation 
of  his  cases,  uncommon  legal  acumen,  and  extraordinary  solidity 
of  judgment.  As  an  adviser,  no  man  had  more  the  confidence  of 
his  clients;  for  he  trusted  nothing  to  chance  or  accident  when 
certainty  could  be  attained,  and  felt  his  way  cautiously  to  his 
conclusions,  which,  once  reached,  rested  upon  sure  foundations, 
and  to  which  he  clung  with  remarkable  pertinacity.  Judges 
soon  learned  to  repose  confidence  in  his  opinions,  and  he  always 
gave  them  the  strongest  proofs  of  the  weight  justly  due  to  his 
conclusions." 

Thus  established  in  the  high  esteem  of  the  profession 
and  the  public,  he  had  an  assured  future  before  him. 
He  was  universally  recognized  as  among  the  leaders  of 
the  bar.  Had  he  chosen  thus  to  continue  at  the  bar, 
there  seemed  to  be  nothing  of  success  or  of  fortune  which 
was  not  within  his  reach.  It  was  at  this  moment,  when 
his  prospects  were  at  the  brightest,  that  his  professional 
career  was  interrupted  by  his  elevation  to  the  bench. 

In  1857  he  was  elected  Judge  of  the  Supreme  Court  of 
the  State  for  the  term  of  six  years,  commencing  January 
1,  1858.  There  were  two  candidates  besides  himself  be- 
fore the  people,  and  93,000  votes  were  polled.  He  re- 
ceived a  majority  of  36,000  over  each  of  his  opponents, 
and  17,000  over  them  both  together.  His  duties  began 
even  before  his  regular  term  of  office.  In  September  of 
that  year  the  Chief  Justice  of  the  court,  Hugh  L.  Murray, 
died,  and  one  of  the  Associate  Judges  was  appointed  to 
fill  the  vacancy  created  in  the  court,  though  Mr.  Terry, 
being  the  senior  associate,  succeeded  to  the  Chief  Justice- 
ship. This  appointment  left  the  remainder  of  the  Asso- 


30 

ciate  Judge's  term  of  service,  which  extended  to  the 
following  January,  unoccupied,  and  Mr.  Field  was  ap- 
pointed by  the  Governor  of  the  State — a  political  oppo- 
nent— to  fill  it.  He  accepted  the  appointment,  and  took 
his  seat  on  the  bench  October  13,  1857.  He  held  the 
office  of  Associate  Judge  until  the  resignation  of  Chief 
Justice  Terry  in  September,  1859,  when  he  became  Chief 
Justice,  and  so  continued  as  long  as  he  remained  on  the 
bench  of  California. 

The  appointment  of  Judge  Field  to  the  bench  neces- 
sitated his  change  of  residence  from  Marysville  to  Sacra- 
mento. The  latter  city  was  the  capital  of  the  State.  The 
sessions  of  the  Supreme  Court  were  held  there,  and  there 
chambers  for  the  judges  were  provided.  As  soon,  there- 
fore, as  he  could  arrange  his  private  business  at  Marys- 
ville he  removed  to  Sacramento,' but  he  left  Marysville 
with  much  regret.*  He  had  passed  many  years  there 
happily  and  had  made  many  warm  friends,  for  whom  he 
always  retained  pleasant  recollections  and  great  regard. 
While  the  people  there  were,  as  a  general  rule,  peaceful  in 
their  conduct  and  constituted  a  prosperous  and  moral  com- 
munity, there  were  some  of  a  different  temperament  and 
disposition.  Difficulties  not  uncommon  in  new  settle- 
ments sometimes  arose,  leading  to  unpleasant  and  danger- 

*  The  Judge  in  his  "Reminiscences"  thus  speaks  of  Marysville:  "I 
had  seen  it  [Marysville]  grow  from  a  collection  of  tents  with  a  few  hun- 
dred occupants  to  a  town  of  substantial  buildings,  with  a  population 
of  from  eight  to  ten  thousand  inhabitants.  From  a  mere  landing  for 
steamers  it  had  become  one  of  the  most  important  places  for  business  in 
the  interior  of  the  State.  When  I  left  it  was  the  depot  of  merchandise 
for  the  country  lying  north  and  east  of  it;  and  its  streets  presented  a 
scene  of  bustle  and  activity.  Trains  of  wagons  and  animals  were  con- 
stantly leaving  it  with  goods  for  the  mines.  Its  merchants  were  gen- 
erally prosperous;  some  of  them  were  wealthy.  Its  bankers  were  men 
of  credit  throughout  the  State.  Steamers  plied  daily  between  it  and 
Sacramento,  and  stages  ran  to  all  parts  of  the  country,  and  arrived  every 
hour.  Two  daily  newspapers  were  published  in  it.  Schools  were  opened 
and  fully  attended.  Churches  of  different  denominations  were  erected 
and  filled  with  worshippers.  Institutions  of  benevolence  were  founded 


31 

ous  collisions.  The  Judge  avoided  all  such  collisions  as 
much  as  possible,  consistently  with  proper  respect  for  him- 
self. In  his  contest  with  the  ruffian  judge,  Turner,  referred 
to  above,  he  had  laid  down  a  line  of  conduct  to  pursue  to- 
wards all  persons  with  whom  he  should  come  in  contact, 
that  is,  to  treat  them  courteously,  so  far  as  such  treatment 
was  possible  with  the  maintainance  of  his  own  just  rights 
and  a  proper  self-respect;  but  not  to  cross  the  streets  or 
turn  a  corner  to  get  out  of  the  way  of  any  one  because 
of  his  threats  of  violence  or  disposition  to  quarrel — to  ex- 
cuse always  an  unintentional  injury,  but  not  to  permit 
one  to  step  on  his  toes  by  accident  more  than  twice  in 
immediate  succession.  Seeking  to  avoid,  but  never 
shrinking  from  a  collision  when  forced  on  him,  he 
passed  the  seven  years  of  his  life  in  Marysville  with  but 
few  personal  difficulties,  and  they  ended  in  such  a  way 
that  their  renewal  was  not  earnestly  sought  by  the  as- 
sailants. 

He  was  received  in  Sacramento  by  its  citizens  with 
consideration  and  courtesy,  and  resided  there  during  the 
whole  period  he  held  his  position  on  the  State  bench, 
which  was  over  five  years  and  a  half,  and  during  that 
period  received  the  same  consideration  and  courtesy. 
Whilst  residing  there  he  became  acquainted  with  Miss 

and  supported.  A  provident  city  government  and  a  vigorous  police  pre- 
served order  and  peace.  Gambling  was  surpressed,  or  carried  on  only  in 
secret.  A  theatre  was  built  and  sustained.  A  lecture-room  was  opened 
and  was  always  crowded  when  the  topics  presented  were  of  public  inter- 
est. Substantial  stores  of  brick  were  put  up  in  the  business  part  of  the 
city,  and  convenient  frame  dwellings  were  constructed  for  residences  in 
the  outskirts,  surrounded  with  plats  filled  with  trees  and  flowers.  On 
all  sides  were  seen  evidences  of  an  industrious,  prosperous,  moral,  and 
happy  people,  possessing  and  enjoying  the  comforts,  pleasures,  and  lux- 
uries of  life.  And  they  were  as  generous  as  they  were  prosperous.  Their 
hearts  and  their  purses  were  open  to  all  calls  of  charity.  No  one  suffer- 
ing appealed  to  them  in  vain.  No  one  in  need  was  turned  away  from 
their  doors  without  having  his  necessities  relieved.  It  is  many  years 
since  I  was  there,  but  I  have  never  forgotten,  and  I  shall  never  forget, 
the  noble  and  generous  people  that  I  found  there  in  all  the  walks  of  life." 


32 

Sue  Virginia  Swearingen,  a  resident  of  San  Francisco,  and 
they  were  married  on  the  2d  of  June,  1859,  an  union 
which  has  been  to  him  a  constant  source  of  happiness. 

In  the  exchange  of  positions  from  the  bar  to  the  bench 
Mr.  Field  left  the  sphere  in  which  he  was  at  home,  and 
which  might  have  seemed  most  attractive  to  his  ambition. 
To  an  aspiring  lawyer  there  is  no  fame  so  dear  as  that  of 
a  great  advocate.  One  who  has  always  gained  success  in 
this  arena,  who  has  proved  his  power  over  courts  and 
juries,  is  very  reluctant  to  turn  aside  from  this  brilliant 
career.  He  felt  a  natural  regret  that  he  could  no  more 
take  part  in  these  exciting  contests,  even  though  it  were 
to  exchange  his  place  for  the  more  calm  and  dignified 
position  of  a  judge.  But  in  the  condition  of  California 
at  that  time  there  was  perhaps  no  officer  of  the  State  so 
much  needed  to  strengthen  law  and  order — the  founda- 
tions of  the  Commonwealth — as  an  upright,  able,  and  cour- 
ageous judge.  The  bar  of  California  contained  a  number 
of  men  of  eloquence  and  ability,  fluent  speakers  and  de- 
baters, ready  in  wit  as  in  argument,  who  would  run  over 
a  weak  judge  or  a  timid  one.  They  now  found  in  the 
seat  of  authority  one  whose  clearness  of  mind  and  under- 
standing of  the  great  principles  of  law  could  not  be  con- 
fused or  deceived,  and  who,  with  the  utmost  courtesy  of 
manner,  united  a  firmness  and  courage  nowhere  more 
needed  than  on  the  bench.  This  combination  of  quali- 
ties inspired  respect  for  the  judicial  office  and  for  the  law 
which  it  represented.  Besides  this,  in  California  the  laws 
themselves  were  unsettled.  Successive  Legislatures  had, 
indeed,  passed  volumes  of  enactments,  but  the  force  of 
these  could  only  be  determined  by  actual  decisions  in  the 
courts.  It  is  well  understood  in  law  that  the  work  of  the 
legislator  is  incomplete  until  the  judge  comes  to  apply 
the  acts  which  have  been  passed,  and,  in  Scripture  phrase, 
"to 'give  the  meaning  and  the  interpretation  thereof." 
The  novelty  of  some  of  the  cases  presented  for  decision, 
and  their  extreme  difficulty,  are  such  as  only  a  lawyer  can 


33, 

understand.  I  do  not  feel  competent  to  give  an  opinion 
on  the  numerous  complexities  which  he  was  to  disen- 
tangle, but  will  quote  what  was  written  of  him  afterwards, 
when  he  was  about  to  retire  from  that  court,  by  one  who 
was  for  three  years  his  associate  in  this  work — Judge 
Joseph  G.  Baldwin : 

"When  he  came  to  the  bench  the  calendar  was  crowded  with 
cases  involving  immense  interests,  the  most  important  questions, 
and  various  and  peculiar  litigation.  California  was  then,  as  now, 
in  the  development  of  her  multiform  material  resources.  The 
judges  were  as  much  pioneers  of  law  as  the  people  of  set  lement. 
To  be  sure,  something  had  been  done,  but  m  ich  had  yet  to  be 
accomplished ;  and  something,  too,  had  to  be  undone  of  that  which 
had  been  done  in  the  feverish  and  anomalous  period  that  had 
preceded.  It  is  safe  to  say  that,  even  in  the  experience  of  new 
countries,  hastily  settled  by  heterogeneous  crowds  of  strangers 
from  all  countries,  no  such  example  of  legal  or  judicial  difficul- 
ties was  ever  before  presented  as  has  been  illustrated  in  the  his- 
tory of  California.  There  was  no  general  or  common  source  of 
jurisprudence.  Law  was  to  be  administered  almost  without  a 
standard.  There  was  the  civil  law,  as  adulterated  or  modified  by 
Mexican  provincialisms,  usages,  and  habitudes,  for  a  great  part 
of  the  litigation  ;  and  there  was  the  common  law  for  another  part, 
but  what  that  was  was  to  be  decided  from  the  conflicting  decisions 
of  any  number  of  courts  in  America  and  England,  and  the  va- 
rious and  diverse  considerations  of  policy  arising  from  local  and 
other  facts.  And  then,  contracts  made  elsewhere,  and  some  of 
them  in  semi-civilized  countries,  had  to  be  interpreted  here.  Be- 
sides all  of  which  may  be  added  that  large  and  important  inter- 
ests peculiar  to  this  State  existed — mines,  ditches,  &c. — tor  which 
the  courts  were  compelled  to  frame  the  law,  and  make  a  system 
out  of  what  was  little  better  than  chaos. 

"  When,  in  addition,  it  is  considered  that  an  unprecedented 
number  of  contracts,  and  an  amount  of  business  without  parallel, 
had  been  made  and  done  in  hot  haste,  with  the  utmost  careless- 
ness; that  legislation  was  accomplished  in  the  same  way,  and  pre- 
sented the  crudest  and  most  incongruous  materials  for  construc- 
tion ;  that  the  whole  scheme  and  organi/ation  of  the  government, 
and  the  relation  of  the  departments  to  each  other,  had  to  be  ad- 
5 


34 

justed  by  judicial  construction — it  may  well  be  conceived  what 
task  even  the  ablest  jurist  would  take  upon  himself  when  he 
assumed  this  office.  It  is  no  small  compliment  to  say  that  Judge 
Field  entered  upon  the  duties  of  this  great  trust  with  his  usual 
zeal  and  energy,  and  that  he  leaves  the  office  not  only  with  greatly 
increased  reputation,  but  that  he  has  raised  the  character  of  the 
jurisprudence  of  the  State.  He  has,  more  than  any  other  man, 
given  tone,  consistency,  and  system  to  our  judicature,  and  laid 
broad  and  deep  the  foundation  of  our  civil  and  criminal  law. 
The  land  titles  of  the  State — the  most  important  and  permanent 
of  the  interests  of  a  great  Commonwealth — have  received  from 
his  hand  their  permanent  protection,  and  this  alone  should  entitle 
him  to  the  lasting  gratitude  of  the  bar  and  the  people." 

The  most  important  land  cases  in  which  he  delivered 
the  opinion  of  the  court  while  on  the  State  bench  are 
mentioned  in  a  note  below.*  A  more  particular  notice 
may  be  taken  of  one  or  two  of  them  from  the  peculiarity 
of  the  questions  presented,  such  as  the  alleged  ownership 
b}T  the  State  of  the  gold  and  silver  in  the  lands  of  private 
individuals,  and  the  right  of  maintaining  a  possessory 
action  for  lands,  the  ownership  of  which  was  in  the 
United  States  or  in  the  State. 

In  1853,  in  Hicks  v.  Bell  (3  Cal.  220),  the  Supreme 
Court  had  decided  that  the  State,  by  virtue  of  her  sover- 
eignty, owned  the  mines  of  gold  and  silver  within  her 
limits,  wherever  found,  even  in  the  lands  of  private  indi- 
viduals. This  decision  was  founded  upon  the  case  of  the 
Queen  v.  Earl  of  Northumberland,  reported  in  Plowderi, 
where  it  was  held  that  the  King  owned  the  mines  and 
ores  of  gold  and  silver  found  within  the  realm,  in  what- 
soever land  they  existed.  The  Supreme  Court  of  Cali- 
fornia, without  considering  the  reasons  assigned  in  the 

*  Ferris  v.  Coover,  (10  Cal.  589;  )  Waterman  v.  Smith,  (13  Cal.  373;) 
Moore  v.  Wilkinson,  (13  Id.  478;)  Biddle-Boggs  v.  Merced  Mining  Co., 
(14  Cal.  361-366;)  Stark  v.  Barrett,  (15  Cal.  362;)  Mott  v.  Smith,  (16 
Cal.  534  ; )  Coryell  v.  Cain,  (16  Id.  567; )  Teschemacher  v.  Thompson,  (18 
Cal.  20;)  Leese  v.  Clark,  (18  Cal.  565;  20  Cal.  411  ;  )  Estrada  v.  Murphy, 
(18  Cal.  268; )  Moore  v.  Smaw,  and  Fremont  v.  Fowler,  (17  Cal.  200.) 


35 

case  in  Plowden,  adopted  its  conclusion,  and,  as  the  gold 
and  silver  in  the  British  realm  were  held  to  belong  to 
the  Crown,  it  was  concluded  that  such  metals  within  the 
limits  of  a  State  must  belong,  in  this  country,  to  the 
State.  "  The  State,  therefore,"  said  the  court,  "  has  solely 
the  right  to  authorize  them — the  mines  of  gold  and 
silver — to  be  worked,  to  pass  laws  for  their  regulation,  to 
license  miners,  and  to  fix  such  terms  [and  conditions  as 
she  may  deem  proper,  to  the  freedom  of  their  use.  In 
the  legislation  upon  this  subject  she  has  established  the 
policy  of  permitting  all  who  desire  it  to  work  the  mines 
of  gold  and  silver,  with  or  without  conditions,  and  she 
has  wisely  provided  that  their  conflicting  claims  shall  be 
adjudicated  by  the  rules  and  customs  which  may  be  es- 
tablished by  bodies  of  them  working  in  the  same  vicinity." 
The  miners,  under  this  decision,  assumed  in  many  in- 
stances the  right  to  invade  the  lands  of  private  proprie- 
tors for  the  purpose  of  mining,  as  freely  as  they  entered 
upon  the  public  lands.  It  was  a  part  of  the  policy  of 
the  State  to  encourage  a  development  of  the  mines,  and 
they  claimed  the  right  to  assist  in  that  way  in  such  de- 
velopment under  the  sanction  of  that  decision.  The 
trouble  and  vexation  and  spoliation  arising  from  such 
invasion  led  the  court,  in  the  subsequent  case  of  Stoakes  v. 
Barrett  (5  Cal.  37),  to  modify  this  ruling,  and  to  hold 
that,  though  the  State  was  the"  owner  of  the  gold  and 
silver  found  in  the  land  of  private  individuals  as  well 
as  in  public  lands,  yet  to  authorize  an  invasion  of  pri- 
vate property  in  order  to  enjoy  a  public  franchise  would 
require  more  specific  legislation  than  any  resorted  to.  In 
the  case  of  Biddle-Boggs  v.  Merced  Mining  Company 
(14  Cal.  279,  379),  which  came  before  the  court  in  1859, 
the  plaintiff  brought  an  action  for  the  recovery  of  land 
covered  by  a  patent  of  the  United  States,  issued  upon 
the  confirmation  of  a  Mexican  grant.  The  defendant 
claimed  the  existence  of  a  license  to  extract  the  gold  and 
silver  found  in  the  land  notwithstanding  the  patent, 


36 

under  the  decision  of  the  State.  The  existence  of  this 
license  was  repudiated  by  the  court,  and,  in  speaking  of 
it,  Judge  Field  said:  "There  is  gold  in  limited  quantities 
scattered  through  large  and  valuable  districts,  where  the 
land  is  held  in  private  proprietorship,  and,  under  this 
pretended  license,  the  whole  might  be  invaded,  and  for 
all  useful  purposes  destroyed,  no  matter  how  little  re- 
munerative the  product  of  the  mining.  The  entry  might 
be  made  at  all  seasons,  whether  the  land  was  under  cul- 
tivation or  not,  and  without  reference  to  its  condition, 
whether  covered  with  orchards,  vineyards,  gardens,  or 
otherwise.  Under  such  a  state  of  things  the  proprietor 
would  never  be  secure  in  his  possession,  and  without 
security  there  would  be  little  development,  for  the  incen- 
tive to  improvement  would  be  wanting.  What  value 
would  there  be  to  a  title  in  one  man  with  the  right  of 
invasion  in  the  whole  world?  And  what  property  would 
an  owner  possess  in  mineral  land,  the  same  being  in  effect 
to  him  poor  and  valueless  Justin  proportion  to  the  actual 
richness  and  abundance  of  its  products?  There  is  some- 
thing shocking  to  all  our  ideas  of  the  right  of  property 
in  the  proposition  that  one  man  may  invade  the  posses- 
sions of  another  and  dig  up  his  fields  and  gardens,  cut 
down  his  timber,  and  occupy  his  land  under  the  pre- 
tense that  he  has  reason  to  believe  there  is  gold  under 
the  surface,  or,  if  existing,  that  he  wishes  to  extract  and 
remove  it." 

In  Moore  v.  Sin  aw  and  Fremont  v.  Fowler  (17  Cal. 
199)  the  doctrine  that  the  precious  metals  belonged  to 
the  State  by  virtue  of  her  sovereignty  was  fully  ex- 
ploded. In  that  case  Judge  Field  thus  defined  what 
was  meant  by  the  sovereignty  of  a  State :  "  Sovereignty," 
he  said,  "  is  a  term  used  to  express  the  supreme  political 
authority  of  an  independent  State  or  nation.  Whatever 
rights  are  essential  to  the  existence  of  this  authority  are 
rights  of  sovereignty.  Thus  the  right  to  declare  war,  to 
make  treaties  of  peace,  to  levy  taxes,  to  take  private  prop- 


37 

erty  for  public  uses — termed  the  right  of  eminent  do- 
main— are  all  rights  of  sovereignty,  for  they  are  rights 
essential  to  the  existence  of  supreme  political  authority. 
In  this  country,  this  authority  is  vested  in  the  people,  and  is 
exercised  through  the  joint  action  of  their  Federal  and 
State  governments.  To  the  Federal  government  is  dele- 
gated the  exercise  of  certain  rights  and  powers  of  sover- 
eignty, and,  with  respect  to  sovereignty,  rights  and  powers 
are  synonymous  terms ;  and  the  exercise  of  all  other 
rights  of  sovereignty,  except  as  expressly  prohibited,  is 
reserved  to  the  people  of  the  respective  States,  or  v.ested 
by  them  in  their  local  governments.  When  we  say, 
therefore,  that  a  State  of  the  Union  is  sovereign,  we  only 
mean  that  she  possesses  supreme  political  authority,  ex- 
cept as  to  those  matters  over  which  such  authority  is 
delegated  to  the  Federal  government  or  prohibited  to  the 
States ;  in  other  words,  that  she  possesses  all  the  rights 
and  powers  essential  to  the  existence  of  an  independent 
political  organization,  except  as  they  are  withdrawn  by 
the  provisions  of  the  Constitution  of  the  United  States. 
To  the  existence  of  this  political  authority  of  the  State — 
this  qualified  sovereignty  or  any  part  of  it — the  ownership 
of  the  minerals  of  gold  and  silver  found  within  her  limits 
is  no  way  essential." 

In  Cory  ell  v.  Cain  (16  Cal.  572).  the  principle  that  had 
been  adopted  in  suits  for  mining  claims,  ascribing  to  the 
first  appropriator  of  mines,  who  followed  up  his  discovery 
by  actual  development  of  the  mine,  the  better  right  to 
the  same.,  was  held  to  apply  to  actions  for  the  possession 
of  lands,  the  title  of  which  was  in  the  United  States 
or  in  the  State,  in  advance  of  any  legislation  for  its 
use  or  sale.  Thus,  in  this  case,  which  was  for  the  posses- 
sion of  land  the  title  of  which  was  assumed  to  be  in  this 
condition,  Judge  Field  said:  "It  is  undoubtedly  true, 
as  a  general  rule,  that  the  claimant  in  ejectment  must 
recover  upon  the  strength  of  his  own  title,  and  not  upon 
the  weakness  of  his  adversarv's,  and  that  it  is  a  sufficient 


answer  to  his  action  to  show  title  out  of  him  and  in  a 
third  party.  But  this  general  rule  has,  in  this  State,  from 
the  anomalous  condition  of  things  arising  from  the  pecu- 
liar character  of  the  mining  and  landed  interests  of  the 
country,  been  to  a  certain  extent  qualified  and  limited. 
The  larger  portion  of  the  mining  lands  within  the  State 
belong  to  the  United  States,  and  yet  that  fact  has  never 
been  considered  as  a  sufficient  answer  to  the  prosecution 
of  actions  for  the  recovery  of  portions  of  such  lands. 
Actions  for  the  possession  of  mining  claims,  water  privi- 
leges, and  the  like,  situated  upon  the  public  lands,  are 
matters  of  daily  occurrence,  and  if  the  proof  of  the  para- 
mount title  of  the  government  would  operate  to  defeat 
them,  confusion  and  ruin  would  be  the  result.  In  de- 
termining controversies  between  parties  thus  situated, 
this  court  proceeds  upon  the  presumption  of  a  grant  from 
the  government  to  the  first  appropriator  of  mines,  water 
privileges,  and  the  like.  This  presumption,  which  would 
have  no  place  for  consideration  as  against  the  assertion 
of  the  rights  of  the  superior  proprietor,  is  held  absolute 
in  all  those  controversies.  And  with  the  public  lands 
which  are  not  mineral  lands,  the  title  as  between  citizens 
of  the'  State,  where  neither  connects  himself  with  the 
government,  is  considered  as  vested  in  the  first  possessor, 
and  to  proceed  from  him." 

The  doctrine  of  this  decision  was  of  great  benefit  to  the 
occupants  of  the  public  lands  in  advance  of  measures  by 
the  government  for  their  sale.  It  preserved  peace  among 
them  and  gave  them  protection  until  the  government 
should  come  forward  and  assert  its  superior  title. 

Numerous  cases,  besides  those  to  which  reference  is  had, 
might  be  cited,  not  only  concerning  lands,  but  mortgages, 
the  powers  and  liabilities  of  municipal  corporations,  and 
many  other  subjects.*  As  stated  in  the  work  to  which 

*  Butte  Canal  and  Ditch  Co.  v.  Vaughan,  (11  Cal.  153;  )  Baker  v.  Baker, 
(13  Id.  87;)  Pierce  v.  Robinson,  (13  Id.  116; )  Blanding  t?.  Burr,  (13  Id. 
343;)  Koch  v.  Briggs,  (14  Id.  256;)  Noe  v.  Card,  (14  Id.  577;)  Norris  v. 


39 

Professor  Pomeroy's  sketch  is  prefixed,  they  related  to 
the  claim  of  the  State  to  five  hundred  thousand  acres  of 
land  donated  by  the  act  of  Congress  of  September  4, 1841, 
for  purposes  of  internal  improvement,  and  to  its  right  to 
dispose  of  the  lands  in  advance  of  the  public  surveys;  — 
to  contracts  of  the  State  for  the  support  and  labor  of  its 
convicts; — to  the  power  of  the  courts  to  compel  by  man- 
damus officers  of  the  State  to  do  their  duty ;  — to  the  con- 
flicting rights  of  miners  to  the  use  of  the  water  of  streams 
in  the  mountains  for  the  purpose  of  mining ; — to  the  right 
of  the  wife  to  a  share  of  the  community  property  under  the 
law  of  Mexico  and  the  law  of  California; — to  the  title  of 
the  city  of  San  Francisco  to  lands  within  her  limits  as  suc- 
cessor of  a  former  Mexican  pueblo  and  under  the  grant 
of  beach  and  water  lots  by  the  State  in  1851 ;  — to  the 
construction  of  wills; — to  the  distinction  between  mort- 
gages and  deeds  of  trust ;  and  to  a  great  number  of  other 
subjects.  A  citation  is  given  in  the  note  of  several  of 
these  cases. 

As  might  be  supposed,  the  fame  of  such  judicial  decis- 
ions could  not  be  hid  in  a  corner.  They  attracted  marked 
attention  in  the  Pacific  States,  where  many  similar  cases 
were  likely  to  arise  for  decision,  and  he  was  soon  recognized 
as  the  first  judicial  authority  on  that  coast.  So  universally 
was  this  conceded  that  when,  in  1863,  the  increasing 
importance  of  those  States  led  Congress  to  pass  a  law 
creating  a  new  circuit  on  that  coast,  and  a  tenth  Justice 
on  the  Supreme  Bench  of  the  United  States,  the  whole 

Harris,  (15  Id.  226; )  State  of  California  v.  McCauley,  (15  Id.  429 ; )  Hol- 
liday  v.  Frisbie,  (15  Id.  630;)  McCauley  v.  Brooks,  (16  Id.  12; )  Koppi- 
kus  v.  State  Capital  Commissioners,  (16  Id.  249;)  Brumagim  v.  Tilling- 
hast,  (18  Id.  266;)  Doll  v.  Meador,  (16  Id.  295 ;)  Halleck  v.  Mixer,  (16 
Id.  575.)  McCraken  v.  San  Francisco,  (16  Cal.  591 ; )  Grogan  v.  The  Same, 
(18  Cal.  608 ; )  Pimental  v.  The  Same,  (21  Cal.  359 ; )  Argenti  v.  The  Same, 
(16  Cal.  282 ; )  Zottman  v.  The  Same,  (20  Cal.  96; )  McMillan  v.  Richards, 
(9  Cal.  365 ; )  Nagle  v.  Macy,  (9  Cal.  426  ; )  Johnson  v.  Sherman,  (15  Cal. 
287;)  Goodenow-y.  Ewer,  (16  Cal.  461;)  Perry  v.  Wash  burn,  (20  Cal. 
318.) 


40 

delegation  from  the  Pacific — Senators  and  Representa- 
tives, Democrats  and  Republicans — went  in  a  body  to 
President  Lincoln  and  urged  the  appointment  of  Judge 
Field.  Others  were  mentioned,  but  no  other  name  was 
pressed  by  the  bar  of  California  for  the  position,  for  no 
other  man  was  thought  so  eminently  fitted  for  it.  He  was 
acordingly  nominated  by  the  President,  and  confirmed 
unanimously  by  the  Senate.  His  removal  was  a  great 
loss  to  the  bench  of  California.  "By  this  eve  at,"  said  Judge 
Baldwin, "the  State  has  been  deprived  of  the  ablest  jurist 
who  ever  presided  over  her  courts." 

At  the  time  of  his  nomination  for  a  Justice  of  the  Su- 
preme Court  of  the  United  States  his  name  was  pending 
before  the  Senate  upon  a  nomination  for  Circuit  Judge  of 
the  local  circuit,  on  the  coast,  consisting  only  of  the  State 
of  California,  and  of  which  Hall  McAllister  had  been  the 
judge,  he  having  resigned.  The  creation  of  the  new  cir- 
cuit on  the  coast  did  away  with  the  existence  of  the  local 
circuit. 

Judge  Field's  commission  as  a  Justice  of  the  Supreme 
Court  was  dated  on  the  10th  of  March,  1863,  but  he  did 
not  take  the  oath  of  office  till  the  20th  of  May.  For  this 
there  was  a  reason  of  convenience  and  a  reason  of  senti- 
ment. A  great  number  of  cases  were  pending  in  the 
Supreme  Court  of  California,  in  which  he  had  heard  the 
arguments,  and  he  desired  to  have  them  decided  before 
he  left  the  bench.  But  there  was  also  another  reason. 
The  20th  of  May  was  his  father's  birthday,  and  he  thought 
that  the  dear  old  patriarch,  then  living  in  New  England, 
who  on  that  day  would  complete  his  eight-second  year, 
would  be  gratified  to  learn  that  on  the  same  day  his  son 
had  become  a  Justice  of  the  Supreme  Court  of  the  United 
States. 

As  the  court  was  not  in  session  at  the  time  he  took  the 
oath  of  office,  he  was  assigned  to  the  Tenth  Circuit  by  a 
special  designation  of  the  President,  made  on  the  22d  of 
June,  1863.  A  copy  of  that  order  is  found  in  the  2d  of 


41 

Black's  Reports  at  page  7.  The  circuit  at  that  time  con- 
sisted of  the  States  of  California  and  Oregon.  When 
Nevada  become  a  State  it  was  added  to  the  circuit. 
When  the  act  creating  independent  Circuit  Judges  was 
passed,  in  1869,  each  of  the  Justices  was  required  to  attend 
a  term  in  each  district  of  his  circuit  once  in  every  two 
years.  Up  to  the  time  of  the  creation  of  the  Circuit 
Court  of  Appeals,  in  1891,  Mr.  Field  attended,  each  year, 
a  term  of  every  District  Court  in  his  circuit,  when  there 
was  any  business  requiring  his  consideration,  after  his  ap- 
pointment, with  the  exception  of  three  summers,  during 
two  of  which  he  was  absent  in  Europe,  and  during  one 
he  was  not  in  good  health.  Since  the  creation  of  the 
Circuit  Court  of  Appeals  he  has  not  been  required,  as  he 
construes  the  law,  to  attend  at  a  Circuit  Court  in  each 
district. 

Immediately  after  receiving  his  assignment  he  entered 
upon  the  discharge  of  his  duties,  and,  in  October  follow- 
ing, he  presided  at  a  term  of  the  Circuit  Court  of  the 
United  States  held  at  San  Francisco,  at  which  certain 
parties — Greathouse,  Harpending,  Rubery,  and  others — 
were  brought  to  trial  for  treason  against  the  United 
States.  It  appeared  that  Harpending,  a  native  of  Ken- 
tucky, and  Rubery,  a  native  of  England,  had  contem- 
plated fitting  out  a  privateer,  at  the  city  of  San  Fran- 
cisco, for  the  purpose  of  taking  several  of  the  mail 
steamships  plying  between  that  port  and  Panama,  and 
other  vessels.  With  this  object  ih  view,  Harpending  had 
gone  across  the  country  to  Richmond,  Virginia,  and  pro- 
cured from  Jefferson  Davis,  the  President  of  the  Con- 
federate States,  a  letter  of  marque,  authorizing  him  to 
prey  upon  the  commerce  of  the  United  States,  and  to 
burn,  bond,  or  take  any  vessel  of  their  citizens.  He  also 
received  a  letter  of  instructions  directing  him  how  to  act, 
and  containing  a  form  of  bond  in  case  any  prizes  taken 
should  be  bonded.  Upon  his  return  to  San  Francisco  he 
and  Rubery  made  arrangements  for  the  purchase  of  such 
6 


42 

a  vessel  as  would  suit  their  purpose,  but  these  arrange- 
ments failed  on  account  of  the  dishonor  of  the  drafts 
drawn  for  the  purchase  money  by  Rubery,  and  the  con- 
sequent want  of  funds.  They  also  made  a  voyage  to 
Cerros  Island  for  the  purpose  of  examining  into  its  fitness 
as  a  depot  and  the  rendezvous  whereto  take  the  Panama 
steamers.  In  January  or  February  of  1863,  they  made 
the  acquaintance  of  parties  in  San  Francisco  who  fur- 
nished the  money  and  fitted  out  a  vessel  by  the  name 
of  J.  M.  Chapman,  to  cruise  against  the  vessels  and 
commerce  of  the  United  States,  and  carry  out  their  scheme 
of  privateering,  and  furnished  it  with  arms  and  ammu- 
nition for  that  purpose  and  obtained  a  suitable  number 
of  men  for  a  crew,  the  arms  and  ammunition  being 
packed  in  cases  marked  "  oil  mills  and  machinery," 
Greathouse,  one  of  the  conspirators,  giving  out  that 
he  was  acting  in  the  interest  of  the  Liberal  party  of 
Mexico.  The  plan  of  the  cruise  was  to  sail  from  San 
Francisco  on  Sunday,  March  15,  1863,  to  the  Island  of 
Guadalupe,  which  lies  some  three  hundred  miles  off  the 
coast  of  California,  there  land  Harpendingand  the  fight- 
ing men,  who  were  to  be  shipped  on  the  night  of  Satur- 
day, March  14,  thence  to  proceed  to  Manzanillo,  there 
to  discharge  such  freight  as  might  be  taken,  then  re- 
turn to  Guadalupe  and  fit  the  schooner  for  privateering 
purposes;  then  to  proceed  again  to  Manzanillo,  where 
the  men  were  to  be  enrolled  and  their  names  inserted 
in  the  letter  of  marque,  a  copy  of  which  was  then 
to  be  forwarded  to  the  government  of  the  Confederate 
States.  Their  plan  was  first  to  capture  a  steamer,  bound 
from  San  Francisco  to  Panama,  on  its  arrival  at  Manza- 
nillo; land  its  passengers  on  the  coast  of  Mexico,  and 
with  the  steamer  thus  taken  capture  a  second  steamer. 
Next,  to  seize  a  vessel  from  San  Francisco,  then  engaged 
in  recovering  treasure  from  the  wreck  of  the  steamer 
Golden  Gate;  then  to  go  to  the  Chincha  Islands  and 
burn  United  States  vessels  there,  and  thence  to  the 


43 

China  Sea,  and  finally  to  the  Indian  Ocean  and  join  Ad- 
miral Semmes  of  the  Confederate  Navy.  In  pursuance 
of  this  plan,  and  to  prevent  suspicion,  the  schooner  was 
put  up  for  Manzanillo.  A  partial  cargo  was  shipped  on 
board,  and  Law,  one  of  the  conspirators,  cleared  the  vessel 
at  the  custom-house  for  that  port,  signing  and  swearing 
to  a  false  manifest.  On  the  night  of  March  14,  in  ac- 
cordance with  the  plan  arranged,  all  but  one  of  the  parties 
went  on  board;  fifteen  persons,  who  had  been  employed 
by  Harpending  as  privateersrnen,  were  placed  in  the 
hold  in  an  open  space  left  for  them  in  stowing  the  cargo, 
directly  under  the  main  hatch.  The  only  person  absent 
was  Law,  who  remained  on  shore,  with  the  understand- 
ing that  he  should  be  on  hand  before  morning.  It  after- 
ward appeared  that  he  had  become  intoxicated  and  did 
not  get  down  to  keep  his  engagement  until  after  the 
schooner  had  been  seized.  During  the  evening  Rubery 
had  heard  rumors  that  the  vessel  was  to  be  overhauled, 
and  as  the  morning  approached  and  Law  did  not  appear, 
he  proposed  sailing  without  him.  At  daylight,  Law 
being  still  absent,  Libby,  another  of  the  conspirators 
and  acting  captain,  cast  off  the  lines  and  began  working 
the  schooner  out  from  the  wharf  into  the  stream.  After 
the  vessel  had  thus  started  she  was  seized  by  an  officer 
of  the  United  States,  and  the  parties  were  taken  to  Alca- 
traz  and  confined.  They  were  indicted  by  the  grand 
jury  of  the  United  States  Circuit  Court  for  treason,  under 
the  act  of  Congress  of  July  17,  1862,  for  engaging  in  and 
giving  aid  and  comfort  to  the  then  existing  rebellion 
against  the  government  of  the  United  States.  The  trial 
lasted  several  days  and  excited  a  great  deal  of  interest, 
being  the  first  practical  attempt  to  give  assistance  to  the 
rebellion  by  an  armed  expedition  fitted  out  in  one  of  the 
ports  of  the  United  States.  It  gave  the  court  an  oppor- 
tunity of  defining  what  constituted  treason  and  giving 
aid  and  comfort  to  the  enemy,  and  in  what  respect  parties 
leagued  in  with  the  Confederates  brought  themselves 


44 

within  the  law.  The  parties  claimed  protection  under 
the  letter  of  marque  which  they  had  obtained,  but  the 
court  instructed  the  jury  that,  if  the  parties  indicted  had 
obtained  a  letter  of  marque  from  the  President  of  the  so- 
called  Confederate  States,  that  fact  did  not  exempt  them 
from  prosecution  in  the  tribunals  of  the  country  for  the 
acts  charged  in  the  indictment;  that,  if  belligerent  rights 
had  been  conceded  to  the  Confederate  States  and  to  their 
citizens  in  arms  as  was  claimed,  such  rights  could  not 
be  invoked  by  persons  entering  into  States  which  had  never 
seceded,  and  secretly  getting  up  hostile  expeditions  against 
our  government  and  its  authority  and  laws ;  that  the  local 
and  temporary  allegiance  which  every  one,  citizen  or  alien, 
owes  to  the  government  under  which  he,  at  the  time,  lives 
is  sufficient  in  such  case  to  subject  him  to  the  penalties 
of  treason.  The  jury  found  the  defendants  guilty,  and 
they  were  sentenced  to  both  fine  and  imprisonment. 
One  of  the  defendants — Rubery — was  subsequently  par- 
doned by  President  Lincoln  at  the  request  of  "  John 
Bright  of  England."  The  circumstances  of  the  pardon 
were  peculiar.  The  conspiracy  to  seize  the  steamers 
that  plied  between  San  Francisco  and  Panama,  and 
land  the  passengers  on  the  coast  of  Mexico,  greatly 
incensed  the  people  of  San  Francisco,  for,  in  addition  to 
the  loss  of  the  large  amount  of  treasure  which  each 
steamer  carried,  the  landing  of  passengers  in  that  region 
would  have  been  the  cause  of  the  death  of  many  of  them. 
The  usual  number  of  passengers  in  a  steamer  between 
San  Francisco  and  Panama,  at  that  time,  exceeded 
a  thousand.  Some  months  after  the  conviction  of.  the 
prisoners,  Mr.  Sumner,  Senator  from  Massachusetts,  re- 
ceived a  letter  from  Mr.  Bright,  asking  for  the  pardon 
of  Rubery,  whose  family  relatives  resided  in  Birming- 
ham, which  he  represented  in  Parliament;  and  the 
Senator  called  upon  Judge  Field,  who  had  then  re- 
moved to  Washington  and  taken  his  seat  on  the  bench 
of  the  Supreme  Court,  to  learn  how  such  a  pardon 


45 

would  be  received  in  San  Francisco.  The  Judge  replied 
that  he  thought  it  would  produce  much  irritation  and 
angry  feeling.  Mr.  Sumner  then  stated  that,  as  it  was 
the  request  of  Mr.  Bright,  who  had  always  been  the  firm 
friend  of  America  in  the  war  then  existing,  and  given 
his  great  influence  to  the  support  of  our  government,  he 
would  be  glad  to  secure  the  pardon  desired.  The  Judge 
then  stated  to  Mr.  Sumner  that,  if  President  Lincoln 
would  put  in  his  pardon  that  it  was  granted  at  the  re- 
quest of  "our  good  friend,  John  Bright,  of  England," 
there  would  be  little  complaint  made  in  San  Francisco  at 
the  act  of  clemency.  Mr.  Sumner  so  reported  to  Mr.  Lin- 
coln, and  the  pardon  was  granted,  with  that  language 
inserted. 

The  new  appointment  obliged  the  removal  of  Judge 
Field  from  San  Francisco  to  Washington,  which  now  be- 
.  came  his  residence  for  the  greater  part  of  the  year;  but 
as  he  was  assigned  to  the  new  circuit,  consisting  of  the 
Pacific  States,  it  was  a  part  of  his  duty  to  return  each 
summer  to  hold  a  term  of  the  Circuit  Court  in  California, 
Nevada,  or  Oregon,  and  sometimes  in  all  of  them. 

When  he  ascended  the  bench  of  the  Supreme  Court  of 
the  United  States  he  took  his  seat  in  a  company  of  illus- 
trious men.  Taney  was  then  Chief  Justice,  and  though 
he  had  long  passed  his  fourscore  years,  his  mind  did  not 
fail  with  age,  and  he  still  continued  to  preside  with  the 
serenity  of  wisdom.  He  died  the  following  year,  and 
was  succeeded  by  Chief  Justice  Chase.  There  sat,  as 
Associate  Justices,  Wayne,  Catron,  Nelson,  Grier,  Clifford, 
Swayne,  Miller,  and  Davis.  The  questions  which  came 
before  this  court  were  worthy  of  the  dignity  of  such  a 
tribunal.  As  observed  by  a  legal  writer: 

"  Legal  questions  of  a  countless  number  and  variety,  affecting 
private  rights,  and  involving  every  department  of  jurisprudence — 
common  law  and  equity,  admiralty,  maritime  and  prize  law,  patent 
law  and  copyright,  the  civil  law  as  embodied  in  Louisiana  and 
Mexican  codes,  statutes  of  Congress  and  of  State  Legislatures, 


46 

everything  except  pure  matters  of  probate — may  come  before 
that  court  for  adjudication.  Probably  no  other  single  tribunal 
in  the  world  is  called  upon  to  exercise  a  jurisdiction  extending 
over  so  many  different  subjects,  and  demanding  from  its  judges 
such  a  variety  of  legal  knowledge.  But  the  highest  power  of  the 
court,  that  incident  of  transcendent  importance  which  elevates  it 
far  above  any  other  judicial  tribunal,  is  its  authority  as  a  final 
arbiter  in  all  controversies  depending  upon  a  construction  of  the 
United  States  Constitution,  in  the  exercise  of  which  exalted  func- 
tions, as  the  final  interpreter  of  the  organic  law,  it  determines  the 
bounds  beyond  which  neither  the  national  nor  the  State  govern- 
ments may  rightfully  pass.  It  is  the  unique  feature  of  our  civil 
polity,  the  element  which  distinguishes  our  political  institutions 
from  all  others,  the  crowning  conception  of  our  system,  the  very 
keystone  of  the  vast  arch,  upon  which  depend  the  safety  and  per- 
manence of  the  whole  fabric,  that  the  extent  and  limits  of  the  leg- 
islative and  executive  powers,  under  the  Constitution,  both  of  the 
nation  and  of  the  individual  States,  are  judicially  determined  by 
a  body  completely  independent  of  all  other  departments,  conser- 
vative in  its  essential  nature  and  tendencies,  and  inferior  to  no 
authority  except  the  deliberate  organic  will  of  the  people  expressed 
through  the  elective  franchise." 

The  vast  conservative  power  of  this  department  of  our 
Government,  as  well  as  the  magnitude  of  the  questions 
submitted  to  its  decision,  was  nevermore  fully  illustrated 
than  in  the  cases  which  grew  out  of  the  Civil  War  and  the 
legislation  to  which  it  gave  rise.  One  or  two  examples 
will  illustrate  the  nature  of  these  cases  and  of  the  ques- 
tions involved.  One  of  the  first  of  these  was  the  famous 
Milligan  Case.  In  October,  1864 — six  months  before  the 
close  of  the  war — a  man  by  the  name  of  Milligan,  a  resi- 
dent of  Indiana,  was  arrested  by  order  of  the  military 
commander  of  the  district  and  thrown  into  prison.  In 
the  excitement  of  war  the  authorities  were  disposed  to 
make  quick  work  of  treason,  proved  or  suspected.  He 
was  almost  immediately  brought  before  a  military  com- 
mission charged  with  conspiracy  against  the  Government, 
affording  aid  and  comfort  to  rebels,  inciting  to  insurrec- 


47 

tion,  disloyal  practices,  and  violation  of  the  laws  of  war, 
and  was  found  guilty  and  sentenced  to  death  by  hanging. 
The  proof  may  have  been  ample.  No  doubt  he  was  a 
"  rebel  sympathizer,"  and  may  have  been  very  open  and 
bold  in  expressing  his  sympathy.  But  he  was  not  a  resi- 
dent of  a  State  in  rebellion,  nor  was  he  in  the  military 
or  naval  service  or  under  military  authority.  There  was 
no  rebellion  in  Indiana,  or  state  of  siege,  and  there  was 
no  excuse  for  martial  law.  The  courts  were  open,  and  of 
whatever  offence  he  had  been  guilty  he  could  be  tried 
and  punished  according  to  law.  But  this  did  not  satisfy 
the  eager  spirit  of  many  loyal  men  who  would  trample 
down  all  opposition  to  the  government  of  the  Union  as 
they  would  trample  down  an  army  in  the  field.  Even 
the  good  President  Lincoln  was  so  far  governed  by  these 
considerations,  that  he  approved  the  sentence  and  ordered 
it  to  be  carried  into  execution,  and  the  man  would  have 
been  hung  had  not  the  Supreme  Court  stretched  forth  its 
powerful  hand  to  save  him  from  the  scaffold.  When  the 
question  was  brought  before  that  tribunal,  the  Justices 
were  unanimous  in  decreeing  that  the  man  who  had  been 
so  accused  and  condemned  should  be  set  at  liberty.  But 
five  of  the  nine  Justices  (of  whom  Judge  Field  was  one) 
went  still  farther,  and  in  rendering  their  decision  entered 
a  solemn  declaration  in  support  of  civil  authority  as 
against  military  tribunals,  which  is  one  of  the  most 
memorable  decisions  in  the  annals  of  the  country.  Re- 
ferring to  this  decision,  in  which  he  took  part,  Judge 
Field  pays  a  high  tribute  to  one  of  his  associates  : 

"  The  opinion  was  written  by  Mr.  Justice  Davis,  and  it  will  be 
a  perpetual  monument  to  his  honor.  It  laid  down  in  clear  and 
unmistakable  terms  the  doctrine  that  military  commissions  organ- 
ized during  the  war,  in  a  State  not  invaded  nor  engaged  in  rebel- 
lion, in  which  the  Federal  courts  were  open  and  in  the  undisturbed 
exercise  of  their  judicial  functions,  had  no  jurisdiction  to  try  a 
citizen  who  was  not  a  resident  of  a  State  in  rebellion,  nor  a 
prisoner  of  war,  nor  a  person  in  the  military  or  naval  service; 


48 

and  that  Congress  could  not  invest  them  with  any  such  power; 
and  that,  in  States  where  the  courts  were  thus  open  and  undis- 
turbed, the  guaranty  of  trial  by  jury  contained  in  the  Constitution 
was  intended  for  a  state  of  war  as  well  as  a  state  of  peace,  and  is 
equally  binding  upon  rulers  and  people  at  all  times  and  under  all 
circumstances." 

Hardly  had  the  excitement  of  this  case  subsided  when 
the  court  was  called  upon  to  consider  the  famous  Test 
Oath  Case.  In  the  Constitution  of  Missouri  just  adopted 
had  been  inserted  a  provision  requiring,  as  a  condition  of 
holding  any  office  of  honor,  trust,  or  profit  under  the 
State,  or  of  filling  any  one  of  numerous  positions  pre- 
viously open  to  all,  that  the  party  should  take  what  was 
called  the  Ironclad  Oath — that  is,  swear  that  he  had  never 
had  any  thing  to  do  with  the  rebellion,  and  had  never 
favored  it  openly  or  secretly.  Not  only  did  the  oath  ex- 
tend to  his  acts,  but  to  his  secret  motives  and  feelings. 
It  contained  more  than  thirty  distinct  affirmations,  and 
seemed  like  a  series  of  tests  framed  by  the  Inquisition  to 
search  out  a  man's  very  soul,  and  to  convict  him  in  spite 
of  himself.  If  a  man  could  not  swear  to  each  of  these, 
the  constitution  did  not  permit  him  to  hold  any  of  the 
offices,  trusts,  or  positions  mentioned.  He  could  not  teach 
school;  he  could  riot  practice  law;  he  could  not  be  a  trus- 
tee of  a  church  or  an  officer  of  a  corporation ;  he  could 
not  preach  the  Gospel;  he  could  not  administer  the  sacra- 
ments. It  is  hard  to  believe,  in  this  time  of  the  world, 
that  such  provisions  could  be  found  in  the  Constitution 
or  laws  of  any  civilized  country.  They  belong  to  the 
Dark  Ages  rather  than  to  the  nineteenth  century — to 
Spain  and  Russia  rather  than  to  free  America.  Yet 
there  they  were,  in  the  Constitution  of  Missouri.  The 
only  apology  for  such  provisions  is  that  the  Constitution 
was  framed  under  the  angry  excitement  caused  by  the 
Civil  War.  Their  rigid  enforcement  was  nevertheless  at- 
tempted. 

A  priest  of  the  Roman  Catholic  church  in  that  State, 
Father  Cummings,  was  indicted  for  the  crime  of  teaching 


49 

and  preaching,  as  a  priest  and  minister  of  that  religious 
denomination,  without  taking  this  oath,  and  convicted, 
and  sentenced  to  pay  a  fine  of  five  hundred  dollars,  and 
to  be  committed  to  jail  until  it  was  paid.  The  case  was 
appealed  to  the  Supreme  Court  of  Missouri,  which  affirmed 
the  judgment,  and  then,  as  the  last  resort,  it  was  carried 
to  the  Supreme  Court  of  the  United  States.  Of  the  nine 
judges  sitting  on  that  tribunal,  in  that  sanctuary  of  justice, 
four  voted  to  sustain  that  legislation.  Judge  Field  gave 
the  casting  vote  against  it,  and  wrote  the  opinion  in  burn- 
ing words,  by  which  those  prescriptive  provisions  were 
annulled,  and  declared  to  be  beyond  the  power  of  a  State 
of  the  American  Union  to  enact.* 

*In  his  opinion  the  Judge  said:  "The  oath  thus  required  is.  lor  its 
severity,  without  any  precedent  that  we  can  discover.  In  the  first  place, 
it  is  retrospective;  it  emhruces  all  the  past  from  this  day  ;  and,  if  taken 
years  hence,  it  will  also  cover  all  the  intervening  period.  In  its  retro- 
spective feature  we  believe  it  is  peculiar  to  this  country.  In  England 
and  France  there  have  been  test  oaths,  but  they  were  always  limited  to 
an  affirmation  of  present  belief,  or  present  disposition  towards  the  gov- 
ernment, and  were  never  exacted  with  reference  to  particular  instances 
of  past  misconduct.  In  the  second  place,  the  oath  is  directed  not  merely 
against  overt  and  visible  acts  of  hostility  to  the  government,  but  is  in- 
tended to  reach  words,  desires,  and  sympathies,  also.  And,  in  the  third 
place,  it  allows  no  distinction  between  acts  springing  from  malignant 
enmity  and  acts  which  may  have  been  prompted  by  charity  or  affection 
or  relationship.  If  one  has  ever  expressed  sympathy  with  any  who  were 
drawn  into  the  rebellion,  even  if  the  recipients  of  that  sympathy  were 
connected  by  the  closest  ties  of  blood,  he  is  as  unable  to  subscribe  to  the 
oath  as  the  most  active  and  the  most  cruel  of  the  rebels,  and  is  equally 
debarred  from  the  offices  of  honor  or  trust,  and  the  positions  and  employ- 
ments specified." 

And  again :  "  The  provision  of  the  Federal  Constitution  [against  the 
passage  of  an  ex  post  facto  law]  intended  to  secure  the  liberty  of -the 
citizen,  cannot  be  evaded  by  the  form  in  which  the  power  of  the  State  is 
exerted.  If  this  were  not  so,  if  that  which  cannot  be  accomplished  by 
means  looking  directly  to  the  end,  can  be  accomplished  by  indirect 
means,  the  inhibition  may  be  evaded  at  pleasure.  No  kind  of  oppression 
can  be  named,  against  which  the  framers  of  the  Constitution  intended  to 
guard,  which  may  not  be  effected.  Take  the  case  supposed  by  counsel, 
that  of  a  man  tried  for  treason  and  acquitted,  or  if  convicted,  pardoned; 
the  legislature  may  nevertheless  enact  that,  if  the  person  thus  acquitted 


50 

But  we  have  no  space  to  follow  the  cases  growing  out  of 
the  war  which  sprung  up  in  great  number  and  variety  : 
such  as  cases  of  pardon  and  amnesty ;  cases  of  confiscation 
of  property;  cases  involving  the  question  of  the  legisla- 
tive power  of  the  insurgent  States  during  the  war,  and 
the  extent  to  which  the  Confederate. government  should 
be  regarded  as  a  de  facto  government.  The  policy  of  the 
Reconstruction  Acts  of  Congress,  by  which  the  South  was 
divided  into  military  districts,  and  placed  under  the 
government  of  military  officers,  was  odious  in  the  extreme 
to  the  Judge.  He  thought  it  served  only  to  prolong  the 
irritations  of  the  war,  and  to  give  up  a  whole  section  of  the 
country,  which  had  already  been  swept  with  destruction, 
to  the  anarchy  of  misrule.  His  controlling  desire  was 
to  have  the  government  brought  back  to  the  rules  and 
methods  of  peace.  In  his  view  it  was  time  that  the  reign 
of  arms  should  cease,  and  the  reign  of  law  and  order 
begin. 

But  the  Reconstruction  Acts  were  never  brought  to 
the  test  of  judicial  decision,  and  from  their  nature  could 
not  be.  An  attempt  was  made  to  obtain  a  decision 

or  pardoned  does  not  take  an  oath  that  he  never  has  committed  the  acts 
charged  against  him,  he  shall  not  be  permitted  to  hold  any  office  of  honor 
or  trust  or  profit,  or  pursue  any  avocation  in  the  State.  Take  the  case 
before  us ;  the  Constitution  of  Missouri,  as  we  have  seen,  excludes,  on 
failure  to  take  the  oath  prescribed  by  it,  a  large  class  of  persons  within 
her  borders  from  numerous  positions  and  pursuits;  it  would  have  been 
equally  within  the  power  of  the  State  to  have  extended  the  exclusion  so 
as  to  deprive  the  parties  who  are  unable  to  take  the  oath,  from  any 
avocation  whatever  in  the  State.  Take  still  another  case:  suppose  that, 
in  the  progress  of  events,  persons  now  in  the  minority  in  the  State  should 
obtain  the  ascendency,  and  secure  the  control  of  the  government,  nothing 
could  prevent,  if  the  constitutional  prohibition  could  be  evaded,  the 
enactment  of  a  provision  requiring  every  person,  as  a  condition  of  holding 
any  position  of  honor  or  trust,  or  of  pursuing  any  avocation  in  the  State, 
to  take  an  oath  that  he  had  never  advocated  or  advised  or  supported  the 
imposition  of  the  present  expurgatory  oath.  Under  this  form  of  legis- 
lation the  most  flagrant  invasion  of  private  rights,  in  periods  of  excite- 
ment, may  be  enacted,  and  individuals,  and  even  whole  classes,  may  be 
deprived  of  political  and  civil  rights." 


51 

of  the  court  on  them  in  the  case  of  the  State  of  Mississippi 
v.  President  Johnson  (4  Wall.  475).  A  motion  was 
made  on  behalf  of  the  State  of  Mississippi  for  leave  to 
file  a  bill  in  its  name  praying  the  court  perpetually  to 
enjoin  and  restrain  Andrew  Johnson,  President  of  the 
United  States,  and  E.  0.  C.  Ord,  general  commanding  in 
the  district  of  Mississippi  and  Arkansas,  from  executing 
or  in  any  manner  carrying  out  the  Reconstruction  Acts. 

The  Attorney-General  objected  to  the  leave  asked  for 
upon  the  ground  that  no  bill  which  makes  the  President 
a  defendant  and  seeks  an  injunction  against  him  to  re- 
strain the  performance  of  his  duties  should  be  allowed 
to  be  filed  in  the  court,  and  this  point  was  fully 
argued.  It  was  assumed  by  the  counsel  for  the  State 
that  the  President  in  the  execution  of  the  Reconstruc- 
tion Acts  was  required  to  perform  a  mere  ministerial 
duty,  but  the  court  said  that  in  this  assumption  there 
was  a  confounding  of  the  terms  ministerial  and  executive; 
that  the  duty  imposed  on  the  President  was  in  no  just 
sense  ministerial,  but  was  purely  executive  and  political. 
"An  attempt,"  said  the  court,  "on  the  part  of  the  judical 
department  of  the  government  to  enforce  the  performance 
of  such  duties  by  the  President  might  be  justly  charac- 
terized in  the  language  of  Chief  Justice  Marshall  as  '  an 
absurd  and  excessive  extravagance.' "  It  was  true  that 
in  the  case  before  the  court  its  interposition  was  not  sought 
to  enforce  action  by  the  executive  under  constitutional 
legislation,  but  to  restrain  such  action  under  legislation 
alleged  to  be  unconstitutional.  But  the  court  said  it  was 
unable  to  perceive  that  this  circumstance  took  the  case 
out  of  the  general  principles  which  forbid  judicial  inter- 
ference with  the  exercise  of  executive  discretion.  The 
motion  for  leave  to  file  a  bill  was,  therefore,  denied. 

In  the  subsequent  case  of  The  State  of  Georgia  v.  Stanton 
(6  Wall.  50),  a  bill  in  equity — filed  by  the  State  to  enjoin 
the  Secretary  of  War  and  other  officers,  who  represented 
the  executive  authority  of  the  United  States,  from  carry- 


52 

ing  into  execution  the  Reconstruction  Acts  of  Congress, 
on  the  ground  that  such  an  execution  would  annul  and 
totally  abolish  the  existing  State  government  of  the  State, 
and  establish  another  and  different  one  in  its  place — in 
other  words,  would  overthrow  and  destroy  the  corporate 
existence  of  the  State,  by  depriving  it  of  all  the  means 
and  instrumentalities  whereby  its  existence  might  and 
otherwise  would  be  maintained — was  held  to  call  for  a 
judgment  upon  a  political  question,  and  would  not,  there- 
fore, be  entertained  by  the  court. 

But  though  the  Reconstruction  Acts  could  not  be 
brought  before  the  court  for  judicial  decision,  the  Judge, 
in  company  with  the  great  majority  of  the  legal  profes- 
sion of  the  country,  viewed  the  acts  as  unconstitutional 
and  as  retarding  instead  of  advancing  the  peace  of  the 
country. 

In  the  famous  Legal-tender  Cases  he  stood  with  Chief 
Justice  Chase  against  the  constitutional^  of  the  act  of 
Congress  making  the  promises  of  the  government  a  legal 
tender  for  the  payment  of  debts.  He  could  not  agree 
with  some  of  his  associates  that  Congress  possessed  the 
power  to  make  the  promise  of  a  dollar  the  equivalent  of 
a  dollar  itself.  Had  that  decision,  which  prevailed  in  the 
court  by  a  majority  of  one,  been  sustained,  it  was  his 
opinion  that  the  people  would  have  been  spared  the 
financial  uncertainty  which  followed  the  war,  and  for 
a  long  period  depressed  the  industries  of  the  country. 
Shortly  after  the  decision,  upon  the  addition  of  two  new 
Justices  to  the  bench,  the  question  was  reopened,  and  the 
former  decision  reversed  by  a  majority  of  one.  This  he 
thought  a  step  backward,  and  a  departure  from  the  sound 
S}7stem  established  by  the  Constitution. 

In  the  Slaughter-house  Cases  of  New  Orleans  he  went 
beyond  the  majority  of  the  court,  and  gave  a  wider  appli- 
cation to  the  Fourteenth  Amendment  of  the  Constitution, 
arguing  that  it  was  designed  to  prevent  hostile  and  dis- 
criminating legislation  against  any  class  of  citizens — 
whites  as  well  as  blacks. 


53 

The  first  section  of  the  Fourteenth  Amendment  is  as 
follows:  "All  persons  born  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof,  are  citizens 
of  the  United  States  and  of  the  State  wherein  they  reside. 
No  State  shall  make  or  enforce  any  law  which  shall 
abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States;  nor  shall  any  State  deprive  any  person  of 
life,  liberty,  or  property  without  due  process  of  law,  nor 
deny  to  any  person  within  its  jurisdiction  the  equal  pro- 
tection of  the  laws."  The  court  held,  in  the  case  men- 
tioned, that  the  'clause,  that  "no  State  shall  make  or 
enforce  any  law  which  shall  abridge  the  privileges  or 
immunities  of  citizens  of  the  United  States,"  had  refer- 
ence to  those  privileges  and  immunities  which  belong  to 
persons  as  citizens  of  the  United  States  as  distinguished 
from  citizens  of  the  State,  and  was  of  opinion  that  any 
other  construction  would  deprive  the  States  of  the  means 
of  adopting  measures  which  fell  strictly  within  their 
police  powers.  The  minority  of  the  court,  on  the  con- 
trary, held  that  the  words  "privileges  and  immunities" 
meant  those  fundamental  rights  and  privileges  which 
belong  to  the  citizens  of  all  free  governments,  and  that 
the  constitutional  amendment  prevented  their  abridg- 
ment by  the  States.  The  dissenting  Justices  found  fault 
with  the  law  of  Louisiana,  under  consideration  in  that 
case,  in  that,  in  a  district  embracing  eleven  hundred  and 
fifty-four  square  miles,  and  a  population  of  over  two 
hundred  thousand  inhabitants,  it  gave  to  a  single  corpo- 
ration, an  exclusive  right,  for  twenty-five  years,  to  carry 
on  one  of  the  ordinary  occupations  of  life,  that  of  pre- 
paring animal  food  for  market.  The  minority  objected 
to  the  act  in  that  it  transcended  the  limits  of  the  police 
power  of  the  State  and  asserted  a  right  to  farm  out  the 
ordinary  vocations  of  life.  In  its  dissenting  opinion,  the 
minority,  speaking  by  Justice  Field,  said:  "The  State 
may  prescribe  such  regulations  for  every  pursuit  and 
calling  of  life  as  will  promote  the  public  health,  secure 


54 

the  good  order,  and  advance  the  general  prosperity  of 
society,  but  when  once  prescribed,  the  pursuit  or  calling 
must  be  free  to  be  followed  by  every  citizen  who  is  within 
the  conditions  designated,  and  will  conform  to  the  regu- 
lations. This  is  the  fundamental  idea  upon  which  our 
institutions  rest,  and  unless  adhered  to  in  the  legislation 
of  the  country  our  government  will  be  a  republic  only  in 
name.  The  Fourteenth  Amendment,  in  my  judgment, 
makes  it  essential  to  the  validity  of  the  legislation  of 
every  State  that  this  equality  of  right  should  be  re- 
spected." * 

*In  a  subsequent  case,  Mr.  Justice  Field,  speaking  of  this  case,  said : 
"The  oppressive  nature  of  the  principle  upon  which  the  monopoly  here 
was  granted  will  more  clearly  appear  if  it  be  applied  to  other  vocations 
than  that  of  keeping  cattle  and  of  preparing  animal  food  for  market — to 
the  ordinary  trades  and  callings  of  life— to  the  making  of  bread,  the 
raising  of  vegetables,  the  manufacture  of  shoes  and  hats  and  other  arti- 
cles of  daily  use.  The  granting  of  an  exclusive  right  to  engage  in  such 
vocations  would  be  repudiated  in  all  communities  as  an  invasion  of  com- 
mon right.  The  State  undoubtedly  may  require  many  kinds  of  busi- 
ness to  be  carried  on  beyond  the  thickly-settled  portions  of  a  city,  or 
even  entirely  without  its  limits,  especially  when  attendant  odors  or 
noises  affect  the  health  or  disturb  the  peace  of  the  neighborhood;  but 
the  exercise  of  this  necessary  power  does  not  warrant  granting  to  a  par- 
ticular class  or  to  a  corporation  a  monopoly  of  the  business  thus  removed. 
It  may  be  that,  for  the  health  or  safety  of  a  city,  the  manufacture  of 
beer  or  soap,  or  the  smelting  of  ores,  or  the  casting  of  machinery  should 
be  carried  on  without  its  limits,  yet  it  would  hardly  be  contended  that 
the  power  thus  to  remove  the  business  beyond  certain  limits  would  au- 
thorize the  granting  of  a  monopoly  of  it  to  any  one  or  more  persons. 
And  if  not  a  monopoly  in  business  of  this  character,  how  can  a  monopoly 
for  like  reasons  be  granted  in  the  business  of  preparing  animal  food  for 
market,  or  of  yarding  and  sheltering  cattle  intended  for  slaughter  ?"  And 
again:  "The  common  business  and  callings  of  life,  the  ordinary  trades 
and  pursuits,  which  are  innocuous  in  themselves,  and  have  been  fol- 
lowed in  all  communities  from  time  immemorial,  must  therefore  be  free 
in  this  country  to  all  alike  upon  the  same  conditions.  The  right  to  pur- 
sue them,  without  let  or  hindrance,  except  that  which  is  applied  to  all 
persons  of  the  same  age.  sex,  and  condition,  is  a  distinguishing  privilege 
of  citizens  of  the  United  States,  and  an  essential  element  of  that  free- 
dom which  they  claim  as  their  birthright."  Butchers'  Union  Co.  v.  Cres- 
cent City  Co.,  Ill  U.  S.  756,  757. 


55 

In  the  case  of  protection  of  sealed  matter  in  the  mails, 
he  held  that  letters  and  sealed  packages  subject  to  letter 
postage  in  the  mail  can  be  opened  and  examined  only 
under  warrant,  issued  upon  oath  or  affirmation,  particu- 
larly describing  the  thing  to  be  seized,  the  same  as  is 
required  when  papers  are  subjected  to  search  in  one's  own 
household ;  that  the  constitutional  guaranty  of  the  right 
of  the  people  to  be  secure  in  their  papers  against  unrea- 
sonable searches  and  seizures  extends  to  their  papers 
thus  closed  against  inspection  wherever  they  may  be. 
But  the  law  which  thus  sacredty  guards  private  corre- 
spondence is  abused  and  perverted  when  made  a  shelter 
and  screen  for  vice  and  crime;  and  he  points  out  in  what 
way,  consistently  with  the  constitutional  guaranty,  the 
senders  through  the  mails  of  obscene  books  and  prints 
may  be  reached  and  punished. 

Upon  the  question  of  the  validity  of  the  Thurman  Act, 
relating  to  the  Pacific  railroads,  he  contended  for  the 
inviolability  of  contracts;  that  an  engagement  once  made 
by  a  State  or  by  an  individual  is  sacred,  even  though  it 
be  difficult  of  fulfilment;  that  it  is  the  mark  of  a  just 
government,  as  of  a  just  man,  that  it  "sweareth  to  its 
own  hurt  and  changeth  not."  * 

*In  his  dissenting  opinion  the  Judge  said:  "Where  contracts  are 
impaired,  or,  when  operating  against  the  Government,  are  sought  to  be 
evaded  and  avoided  by  legislation,  a  blow  is  given  to  the  security  of  all 
property.  If  the  Government  will  not  keep  its  faith,  little  better  can 
be  expected  from  the  citizen.  If  contracts  are  not  observed,  no  property 
will,  in  the  end,  be  respected ;  and  all  history  shows  that  rights  of  per- 
son are  unsafe  where  property  is  insecure.  Protection  to  one  goes  with 
protection  to  the  other;  and  there  can  be  neither  prosperity  nor  progress 
where  this  foundation  of  all  just  government  is  unsettled.  'The  mo- 
ment,' said  the  elder  Adams,  *  the  idea  is  admitted  into  society  that 
property  is  not  as  sacred  as  the  laws  of  God,  and  that  there  is  not  a  force 
of  law  and  public  justice  to  protect  it,  anarchy  and  tyranny  commence.' 
I  am  aware  of  the  opinion  which  prevails  generally  that  the  Pacific 
Railroad  corporations  have,  by  their  accumulation  of  wealth  and  the 
numbers  in  their  employ,  become  so  powerful  as  to  be  disturbing  and 
dangerous  influences  in  the  legislation  of  the  country  ;  and  that  they 
should,  therefore,  be  brought  by  stringent  measures  into  subjection  to 


56 

As  stated  by  the  legal  writer  from  whom  we  have  al- 
ready quoted:  The  principles  which  underlie  all  Judge 
Field's  work  in  interpreting  the  Constitution,  and  to  which 
he  has  constantly  adhered,  whether  acting  with  the  court 
or  dissenting  from  it,  "are  summed  up  in  two  ideas: 
First,  the  preservation  from  every  interference  or  invasion 
by  each  other  of  all  the  powers  and  functions  allotted  to 
the  National  Government  and  the  State  governments; 
and,  second,  the  perfect  security  and  protection  of  private 
rights  from  all  encroachments,  either  by  the  United  States 
or  by  the  individual  States.  These  two  ideas  he  has 
steadily  kept  in  view,  and  has  made  the  basis  of  his  de- 
cisions. He  has  demonstrated  that  a  constant  and  firm 
maintenance  of  the  powers  justly  belonging  to  the  Federal 
government  is  not  incompatible  with  an  equally  firm 
upholding  of  the  powers  entrusted  to  the  States,  with  an 
undeviating  adherence  to  the  sacred  doctrine  of  local  self- 
government,  and  with  zealous  protection  of  private  rights, 
because  all,  in  fact,  rest  upon  the  same  foundation." 

Judge  Field  has  now  [1892]  been  nearly  thirty  years 
on  the  bench  of  the  Supreme  Court  of  the  United  States, 
and  in  length  of  service  is  the  senior  Judge.  In  the  de- 
cision of  the  multitude  of  cases  which  have  come  up  from 
year  to  year,  he  has  taken  his  full  share  of  labor  and  re- 
sponsibility, sometimes  writing  the  opinion  of  the  court, 
and  sometimes  dissenting  from  its  views.  These  opinions, 
among  other  things,  as  already  stated,  relate  to  test  oaths, 
military  commissions,  confiscations,  pardons  and  amnesty, 
legal- tender  notes,  legislative  power  of  the  insurgent 
States  during  the  civil  war,  protection  of  sealed  matters 
in  the  mails  from  inspection  by  officials,  and,  it  may  be 
added,  also,  to  the  power  of  the  State  to  control  compen- 

the  State.  This  may  be  true;  I  do  not  say  that  it  is  not;  but,  if  it  is,  it 
furnishes  no  justification  for  the  repudiation  or  evasion  of  the  contracts 
made  with  them  by  the  Government.  The  law  that  protects  the  wealth 
of  the  most  powerful  protects  also  the  earnings  of  the  most  humble ;  and 
the  law  which  would  confiscate  the  property  of  the  one  would  in  the 
end  take  the  earnings  of  the  other." 


57 

sation  for  the  use  of  private  property,  the  relation  between 
the  General  and  State  governments,  the  powers  and  liabil- 
ities of  corporations,  interstate  commerce,  restraints  upon 
taxation,  trust  character  of  directors  of  corporations,  and 
the  use  of  running  waters  on  public  lands,  and  to  a  great 
variety  of  other  subjects.  It  would  require  a  volume  to 
give  even  a  condensed  history  of  these  cases.  The  most 
important  of  them  in  which  opinions  were  delivered  by 
him  for  the  court,  as  well  as  those  in  which  he  dissented 
from  its  views,  are  mentioned  in  a  note  below.* 

*  Those  in  which  he  delivered  the  opinion  of  the  court:  Cases  on  the 
invalidity  of  test-oaths  for  past  conduct,  Cummings  v.  Missouri,  4  Wall. 
277,  and  Ex  parte  Garland,  4  Wall. 333;  cases  relating  to  interstate  com- 
merce, and  the  power  of  the  State  concerning  it,  Wei  ton  v.  Missouri,  91 
U.  S.  275;  County  of  Mobile  v.  Kimball,  102  U.S.  691 ;  Sherlock  v.  Ailing, 
93  U.  S.  99;  Escanaha  v.  Chicago,  107  U.  S.  678;  Miller  v.  Mayor  of  New 
York,  109  U.S.  385;  Cardwell  v.  American  Bridge  Co.,  113  U.  S.  205  ; 
Gloucester  Ferry  Co.  v.  Pennsylvania,  114  U.  S.  196;  and  Htise  v.  Glover, 

119  U.  S.  543;  cases  on  questions  growing  out  of  the  civil  war,  such  as 
the  protection  of  officers  and  men  of  the  United  States  Army  in   the 
enemy's  country  against  civil  proceedings  for  damages,  the  attempt  of 
the  Confederate  States  to  confiscate  debts  due  the  citizens  of  loyal  States, 
and   the  extent  of  liability  of  the  United  States  for  property  taken  or 
destroyed,  Williams  v.  Brufify,  96   U.  S.  176;    Coleman   v.  Tennessee,  97 
U.S.  509;  Dow  v.  Johnson,  100  U.S.  158;    Pacific   Kailroads  v.  United 
States,  120  U.  S.  227;  and  the  Tarble  Case,  13  Wall.  397;  cases  on  con- 
stitutional questions  particularly  affected  by  the  Fourteenth  Amendment, 
Barbier  v.  Connolly,  113  U.  S.  27;  Soon  Hiug  v.  Crowley,  113  U.  S.  703; 
Missouri  Pacific  Kailway  Co.  v.  Humes,  115  U.  S.  512;  Hayes  v.  Missouri, 

120  U.  S.  68;    cases  on  State,  city,  and   county  bonded  indebtedness. 
United  States  v.  New  Orleans,  98  U.  S.  381 ;  Hartman  v.  Greenhow,  102 
U.  S.  672;  Pilsbury  v.  Louisiana,  105  U.  S.  278;  Broughton  v.  Pensacola, 
93  U.  S.  266;  cases  on  patents  of  the  United  States  upon  conh'rmed  Mex- 
ican grants  and  for  public  lauds  and  mining  claims,  Beard  v.  Federy,  3 
Wall.  478 ;  Smelting  Co.  v.  Kemp,  104  U.  S.  636 ;  Steel  v.  Smelting  Co.,  106 
U.  S.  447;  cases  on  mining  claims  and  water  rights,  Jeuuison  v.  Kirk,  98 
U.S.  453;  Atchisou  v.  Peterson,  20  Wall.  507;   Basey  v.  Gallagher,  20 
Wall.  670;  cases  on  the  power  of  a  State  to  prescribe  the  conditions  on 
which  foreign   corporations  may  do  business  within  its  limits,  Paul  v. 
Virginia,  8  Wall.  168,  and  Pembiua  Consolidated  Silver  Mining  Co.  v.  Penn- 
sylvania, 125  U.S.  181 ;  on  proceedings  in  State  courts  against  non-resident 
debtors,  Peunoyer  v.  Neff,  95  U.S.  714;   on  the  invalidity  of  contracts 
for  the  use  of  influence  with  public  officials,  Oscauyau  v.  Arms  Co.,  103 

8 


58 

From  the  time  Judge  Field  went  on  the  Federal  bench 
up  to  the  creation  of  Circuit  Courts  of  Appeals,  he  held 
court  in  his  circuit,  consisting  of  California,  Oregon,  and 
Nevada,  every  year  except  three,  two  of  which  he  was 
absent  from  the  country,  and  during  one  of  which  he 
was  not  in  good  health,  although  since  1869  he  was  only 
required  by  law  to  sit  in  each  district  of  the  circuit  once 

U.  S.  261 ;  on  Federal  jurisdiction  over  lands  used  for  public  purposes  of  the 
United  States  government  within  the  States,  Fort  Leavenworth  R.  R.  Co.  t. 
Lowe,  114  U.S. 525, and  Leavenworth  and  Chicago  and  Rock  Island  R.  R. 
Co.  v.  McGlinn,  Ibid.  543 ;  on  the  removal  of  a  cloud  upon  title  by  a  suit 
in  equity  of  a  party  in  possession,  Holland  v.  Challen,  110  U.  S.  15;  on 
the  responsibility  of  railroad  corporations  to  their  employe's  for  injuries 
inflicted  in  consequence  of  negligence  of  train  conductors,  Chicago  and 
Milwaukee  Railroad  Co.  v.  Ross,  112  U.  S.  377;  on  protection  of  sealed  mat- 
ter in  the  mails,  Ex  parte  Jackson,  96  U.  S.  727;  on  the  exemption  of  a  pas- 
senger in  a  public  conveyance  from  liability  for  the  negligence  of  the 
driver,  Little  v.  Hackett,  116  U.  S.  366;  on  the  power  to  take  private 
property  for  public  use  in  the  exercise  of  the  right  of  eminent  domain  as 
an  incident  of  sovereignty  belonging  to  every  independent  government 
and  existing  in  the  Government  of  the  United  States,  United  States 
v.Jones,  109  U.  S.  513;  on  construction  of  certain  treaties,  Whitney  v. 
Morrow,  112  U.  S.  693;  Whitney  v.  Robertson,  124  U.  S.  191;  on  the 
Hotimas  Spanish  grant  and  construction  of  certain  statutes,  Slidell  v. 
Grandjean,lll  U.  S.  412;  on  the  ownership  by  the  State,  on  her  admission 
to  the  Union,  of  the  lands  under  tide-waters  within  her  limits  not  pre- 
viously granted,  Weber  v.  Harbor  Commissioners,  18  Wall.  57;  on  the 
right  of  the  States  to  swamp  and  overflowed  lands  within  their  limits, 
Wright  v.  Roseberry,  121  U.  S.  488;  on  the  power  of  Congress  to  cancel 
a  treaty,  and  the  circumstances  which  may  justify  such  action,  The 
Chinese  Exclusion  Case,  130  U.  S.  581 ;  on  the  power  of  Congress  to  invest 
consular  tribunals,  in  other  than  Christian  countries,  with  the  power  to 
try  and  punish  criminal  offences  there  committed  by  citizens  of  the  United 
States,  In  re  Ross,  140  U.S.  453;  in  San  Francisco  v.  Le  Roy,  138  U.  S. 
656,  as  to  the  right  of  the  city,  as  the  successor  of  the  pueblo,  to  tide- 
lands  within  its  confirmed  boundaries,  (see  also  concurring  opinion  in 
Knight  v.  U.  S.  Land  Association,  142  U.  S.  189;)  and  in  Bardon  v. 
Northern  Pacific  Railroad  Co.,  145  U.  S.  535,  on  the  segregation  from 
the  public  of  lands  within  the  limits  of  a  grant,  by  reason  of  a  prior 
pre-emption  claim,  and  the  effect  of  the  cancellation  of  the  pre-emption 
right  before  location  of  the  grant;  on  contracts  between  two  citizens 
of  the  United  States,  residing  in  loyal  States,  respecting  cotton  owned 
by  one  of  them  in  the  insurgent  States,  Briggs  v.  United  States,  143 
U.  S.  346 ;  on  the  power  of  a  State  to  exact  from  parties,  before  they 


59 

every  two  years.  His  circuit,  as  now  constituted,  embraces 
six  States.  Besides  California,  Oregon,  and  Nevada,  the 
States  of  Washington,  Idaho,  and  Montana  have  been 
added  to  it.  In  going  and  coming,  and  in  his  circuit,  he 
has  always  travelled  nine  thousand  miles  a  year,  and 
sometimes  a  much  greater  distance,  the  expense  of  which, 
since  1871,  he  has  been  obliged  to  bear  himself.  When 

can  practice  medicine,  a  degree  of  skill  and  learning  in  that  profession, 
upon  which  the  community  employing  their  services  may  confidently 
rely,  and  to  require  them  to  obtain  a  certificate  or  license  from  a  board 
or  other  authority  competent  to  judge  in  that  respect,  Dent  v.  West  Vir- 
ginia, 129  U.  S.  114;  on  the  liability  for  damages  accruing  by  allowing 
cattle  to  run  at  large  and  spread  disease,  Kimmish  v.  Ball,  129  U.  S.  217; 
on  the  validity  of  legislation  imposing  damages  double  the  value  of  the 
stock  killed  by  a  railroad  company  on  a  road  where  the  corporation  had 
a  right  to  erect  a  fence  and  failed  to  do  so,  Minneapolis  &  St.  Louis  Kail- 
way  Co.  v.  Beck  with,  129  U.  S.  26;  on  the  liability  of  a  party  indicted 
in  one  State  escaping  or  carried  to  another  State  to  be  indicted  and  tried 
in  the  latter  State  for  an  offence  there  committed  without  being  sur- 
rendered to  the  former  State,  Mahon  v.  Justice,  127  U.  S.  700;  involving 
a  question  of  boundary  between  two  States,  Indiana  v.  Kentucky,  136 
U.  S.  479;  upon  the  title  of  owners  of  land  bordering  on  navigable 
rivers,  above  the  ebb  and  flow  of  the  tide,  to  the  middle  of  the  stream, 
Packer  v.  Bird,  137  U.  S.  661  ;  upon  the  taxation  by  a  State  of  the 
franchise  or  business  of  a  corporation  incorporated  under  the  law  of 
the  State  or  of  another  State  and  doing  business  within  it,  Home  In- 
surance Company  v.  New  York,  134  U.S.  594,  and  Maine  v. Grand  Trunk 
R.  R.  Co.,  142  U.  S.  217,  and  Horn  Silver  Mining  Company  v.  New  York 
State,'143  U.  S.  305 ;  on  the  effect  of  a  conveyance  of  property  confiscated 
under  the  law  of  the  United  States,  accompanied  with  a  deed  of  warranty 
from  the  offending  party  after  his  release  by  pardon  of  the  offences  for 
which  the  confiscation  was  had,  Jenkins  v.  Collard,  145  U.  S.  547,  on 
the  validity  of  imposing  a  burden  of  a  public  service  upon  a  corporation 
in  consequence  of  its  creation  and  of  the  exercise  of  privileges  obtained 
at  its  request,  Charlotte,  Columbia  and  Augusta  R.  R.  Co.  v.  Gibbes,  142 
U.  S.  386;  on  the  distinguishing  feature  of  a  suit  in  admiralty,  in  that 
the  vessel  or  thing  proceeded  against  is  itself  seized  or  impleaded  as  a 
defendant,  whereas,  by  the  common  law  process,  property  is  reached  only 
through  a  personal  defendant,  and  then  only  to  the  extent  of  his  title, 
in  the  Moses  Taylor,  4  Wall.  411;  and  on  the  inapplicability  of  the  doc- 
trine of  the  common  law  as  a  test  of  the  legal  navigability  of  waters  in 
this  country;  here  the  ebb  and  flow  of  the  tide  not  constituting,  as  in 
England,  such  test,  in  the  Daniel  Ball,  10  Wall.  557. 

Cases  in  which  Judge  Field  has  dissented  from  the  views  of  the  court: 


60 

the  circuit  was  originally  created  an  allowance  was  made 
by  law  of  one  thousand  dollars  a  year  for  his  travelling 
expenses,  but  in  1871  this  allowance  was  cut  off. 

In  his  circuit  he  has  been  called  upon  to  pass  upon 
numerous  questions  of  great  moment.  His  most  import- 
ant opinions  there  decided  are  in  the  cases  stated  in  a  note 
below.* 

The  Slaughter-house  cases,  16  Wall.  83;  (see  also  his  concurring  opinion 
in  Butchers'  Union  Co.  v.  Crescent  City  Co.,  Ill  U.S.  754;)  the  Legal- 
Tende  cases,  12  Wall.  634,  and  110  U.  S.  451;  the  Confiscation  cases,  11 
Wall.  314  and  349;  the  Sinking  Fund  cases,  involving  the  validity  of  the 
Thnrman  Act,  99  U.  S.  750;  the  Elevator  case,  Munn  v.  Illinois,  94  U.  S. 
136,  involving  the  validity  of  legislation  fixing  prices  for  the  use  of  private 
property;  the  Virginia  Judge  case,  Ex  parte  Virginia,  100  U.S.  340;  the 
Provost  Marshal  case,  Beckwith  v.  Bean,  98  U.S.  285;  the  Louisiana 
Debt  cases,  Louisiana  v.  Juiiiel,  107  U.  S.  728;  the  Virginia  Debt  case, 
Antoni  v.  Greenhow,  107  U.S.  784;  and  in  the  Attorney's  case,  Ex  parte 
Wall,  107  U.  S.  290;  the  telegraph  case,  Pensacola  Telegraph  Co.  v.  West- 
ern Union  Telegraph  Co.,  96  U.S.  14;  the  Spring  Valley  water  case, 
Spring  Valley  Water  Works  v.  Schottler,  110  U.  S.  356;  in  the  Chinese 
Restriction  case,  Chew  Heong  v.  United  States,  112  U.  S.  536;  in  the  case 
of  the  Bridge  Co.  v.  United  States,  105  U.  S.  470,  against  the  absolute 
control  by  the  United  States  of  bridges  constructed  by  autbority  of  a 
State  on  navigable  waters  within  its  limits;  their  control,  as  contended, 
limited  to  the  protection  and  improvement  of  the  free  navigation  of  those 
waters;  in  Powell  v.  Pennsylvania,  127  U.  S.  678,  against  the  asserted 
power  of  the  State  to  prohibit  the  right  of  the  individual  to  manufacture 
a  healthful  article  of  food;  in  McAllister  v.  United  States,  denying  the 
p  >wer  of  the  President  to  remove  from  office  a  judge  of  a  territory  during 
his  term  prescribed  by  Congress,  (141  U.S.  174;)  in  Boyd  v.  The  State 
of  Nebraska  and  Thayer,  against  the  jurisdiction  of  the  Supreme  Court 
to  determine  a  disputed  question  as  to  the  right  to  the  governorship  of  a 
State,  (143  U.  S.  182;)  in  O'Neil  V.Vermont,  against  the  Supreme  Court, 
denying  its  jurisdiction  in  a  case  involving  a  question  of  interstate  com- 
merce, and  where  the  punishment  imposed  was  cruel  and  unusual,  (144 
U.S.  337;)  and  in  Iron  Silver  Mining  Co.  v.  Mike  and  Starr  Gold  and 
Silver  Mining  Co.,  (143  U.  S.  394,)  against  the  definitions  made  of  "  known 
lodes  or  veins  "of  gold  and  silver. 

*  In  the  Pueblo  case  of  the  City  of  San  Francisco  v.  United  States,  (4 
Sawyer,  553,)  involving  its  claim  to  four  square  leagues  of  land,  under 
the  laws  of  Mexico,  on  the  peninsula  on  which  the  city  is  situated ;  in 
Montgomery  v.  Bevans,  (1  Id.  653,)  upon  the  power  of  alcaldes  of  San 
Francisco  to  make  grants  of  land  within  the  city  limits,  and  upon  the 
presumption  of  life  during  the  abseuce  of  a  party  unheard  from  for  seven 


61 

Of  the  estimate  which  should  be  placed  upon  the  judi- 
cial character  and  labors  of  Judge  Field,  we  have  the 
opinion  of  Professor  Pomeroy,  contained  in  an  intro- 
ductory sketch  to  an  account  of  his  legislative  and  judi- 
cial work,  published  in  1881.  No  one  was  more  compe- 
tent, both  from  his  professional  standing,  eminent  abili- 
ties, and  thorough  knowledge  of  the  opinions  and  labors 
of  Judge  Field,  to  pass  judgment  upon  his  judicial 
character.  After  the  Judge  had  been  eighteen  years 
on  the  bench  of  the  Supreme  Court  of  the  United  States, 
Professor  Pomeroy  wrote  an  extended  review  of  his 
opinions  and  judicial  character,  from  which  the  following 
is  taken : 

"It  would  be  a  comparatively  easy  task  for  one  who  was  per- 
sonally a  stranger  to  Judge  Field,  and  was  only  acquainted  with 
him  through  his  reported  decisions,  to  form  a  correct  estimate  of 

years ;  In  re  Ah  Fong,  (3  Id.  144,)  upon  the  exclusion  of  foreign  emigrants 
by  commissioners  for  previous  had  moral  character  or  for  inability  to  sup- 
port themselves  under  a  law  of  California;  in  Patterson  v.  Tatum,  (3  Id. 
164,)  on  the  grant  by  Congress  to  the  State  of  500,000  acres  and  the  effect  of 
selections  from  the  land  under  the  legislation  of  the  State  ;  in  the  Eureka 
Mining  case,  (4  Id.  302,)  relating  to  mining  veins  and  lodes  of  gold  and 
silver;  in  United  States  v.  Flint  and  v.  Throckmorton,  (4  Id.  42,)  involving 
a  consideration  of  the  validity  of  decrees  of  the  special  tribunals  in  Mexi- 
can land  cases,  and  the  grounds  upon  which  such  decrees  can  be  im- 
peached ;  in  Hardy  v.  Harbin,  (4  Id.  536,)  showing  that  the  holder  of  the 
legal  title  to  land  acquired  by  fraud  may  be  converted  into  a  trustee  of 
the  true  owner  and  compelled  to  convey  the  title  to  him  ;  in  the  Tax 
Cases  of  the  County  of  San  Mateo  v.  Southern  Pacific  Railway  Company, 
(8  Id.  238,)  and  the  Santa  Clara  Railroad  Tax  Case,  (9  Id.  165,)  involv- 
ing a  consideration  of  the  effect  of  the  Fourteenth  Amendment  in 
requiring  equality  and  uniformity  in  the  assessment  of  property  of  rail- 
roads as  well  as  of  individuals;  in  the  case  of  the  Pacific  Railway 
Commission,  (12  Id.  559,)  involving  the  question  of  the  right  of  Con- 
gress to  inquire  into  the  private  affairs  of  the  Pacific  Railway  Com- 
panies in  matters  not  connected  with  railways;  in  the  case  of  Denny  v. 
Dodson,  involving  the  construction  of  the  Northern  Pacific  Railway  Acts, 
(13  Id.  68 ;)  in  the  case  of  Sharon's  Executors  v.  David  S.  Terry  and 
Sarah  Althea  Terry,  his  wife,  reviving  a  suit  in  equity,  abated  by  the 
death  of  the  complainant,  for  the  purpose  of  executing  a  final  decree 
which  had  been  rendered  in  such  suit,  (13  Id.  387;)  and  in  the  Terry 
Contempt  Case,  (Id.  440.) 


62 

his  judicial  character.  Its  important  elements,  those  which  dis- 
tinguish him  from  the  other  judges,  and  which  constitute  the 
special  grounds  of  his  success  and  of  his  power,  stand  out  in  clear- 
cut  lines  upon  all  the  creations  of  his  official  labors.  He  has 
stamped  himself — his  intellectual  and  moral  features — deeply  into 
all  the  work  which  he  has  done.  From  my  own  personal  ac- 
quaintance with  him,  but  chiefly  from  a  careful  study  of  all  his 
important  judgments  rendered  both  while  a  member  of  the  State 
Court,  and  after  his  transfer  to  the  National  Judiciary,  I  have 
arrived  at  the  following  conclusions,  which  I  unhesitatingly  sub- 
mit as  the  most  striking  and  distinctive  elements  of  his  judicial 
character  and  work.  They  are  undoubtedly  the  very  qualities 
which,  in  our  system  of  jurisprudence,  steadily  developing  through 
the  creative  functions  of  the  courts,  mark  the  ideal  judge — the 
qualities  which  have  been  held  by,  and  which  admit  him  to  be 
ranked  with,  the  very  foremost  class  of  jurists  who  have  set  upon 

the  English  and  American  bench 

"  In  the  first  and  lowest  place,  he  possesses  an  ample  legal 
learning.  It  cannot  be  pretended  that  he  has  that  exact  knowl- 
edge of  technical  common-law  dogmas  which  distinguished  such 
a  judge  as  Lord  Kenyon  or  Baron  Parke,  or  of  the  intricate 
minutiae  of  real  estate  and  conveyancing  law  which  alone  gave 
Lord  Eldon  his  pre-eminence  among  English  chancellors — a  sort 
of  knowledge  which  with  a  certain  pedantic  school  has  passed 
for  the  highest  legal  learning,  but  which  is  worse  than  useless 
rubbish  for  the  American  judge  of  to-day.  Judge  Field's  learn- 
ing, as  a  distinctive  feature  of  his  intellect,  is  rather  the  capacity 
in  an  extraordinary  degree  to  acquire  the  new  knowledge  made 
necessary  by  the  demands  of  his  position — the  capacity  to  investi- 
gate sources  and  systems  of  jurisprudence  hitherto  unknown,  to 
sift  truth  from  error,  to  extract  whatever  there  is  of  living  prin- 
ciple, and  to  appropriate  and  to  assimilate  the  materials  thus  ob- 
tained with  the  State  or  National  law  which  he  is  administering. 
He  brought  to  the  bench  a  mind  stored  with  the  doctrines  of  the 
common  law  and  of  equity,  great  intellectual  vigor,  and  a  most 
remarkable  capacity  for  rapid  and  sustained  mental  labor.  The 
exigencies  of  his  position  required  him  to  investigate  the  Spanish- 
Mexican  Codes,  which  furnished  the  authoritative  rules  concern- 
ing 'pueblos,'  with  all  the  municipal  and  proprietary  rights 
flowing  therefrom  and  concerning  the  Mexican  governmental 


63 

grants  to  private  owners,  and  also  to  create  general  principles 
and  doctrines  for  which  the  common  law  and  equity  of  England 
and  the  United  States  afforded  very  few  if  any  analogies.  It  is 
enough  to  say  that  his  learning,  his  intellectual  power,  and  his 
thorough  and  accurate  study  of  foreign  systems  were  always  ade- 
quate to  meet  the  requirements  of  the  occasion 

"  The  second  and  much  more  important  element  which  I  shall 
notice,  is  his  devotion  to  principle — that  quality  of  intellect  which 
leads  him,  on  all  judicial  occasions,  to  seek  for,  apprehend,  and 
appreciate  principles,  rather  than  to  rest  satisfied  with  mere  rules, 
although  sustained  by  precedent,  and  to  apply  firmly  these  prin- 
ciples where  found  in  all  their  relations  and  consequences — to 
place  his  decisions  upon  the  solid  basis  of  fundamental  and  uni- 
versal principles,  rather  than  upon  arbitrary  dogmas.  This  quality 
gives  a  most  marked  unity,  consistency,  and  universality  to  his 
decisions,  not  only  to  those  connected  with  some  single  branch  of 
the  law,  but  to  those  belonging  to  any  and  all  departments.  His 
adjudications  generally  will  thus  be  found  related  to  each  other, 
harmonious,  corresponding  parts  of  one  completed  system.  This 
method  of  adhering  to  principle  as  the  sure  and  constant  guide 
in  ascertaining,  interpreting,  and  applying  the  law  is  the  im- 
mediate and  efficient  cause  of  that  most  remarkable  consistency 
which  runs  through  all  his  judicial  utterances.  I  shall  have 
occasion  to  speak  more  in  detail  of  this  special  feature  of  con- 
sistency, when  describing  his  judgments  upon  questions  of  consti- 
tutional law ;  and*although  it  appears,  perhaps  in  the  most  striking 
manner,  in  that  class  of  cases,  it  is  still  a  distinguishing  mark  of 
all  his  work.  The  power  of  discovering,  apprehending,  and  ap- 
plying principles  is  the  highest  intellectual  faculty  of  the  ideal 
judge;  it  takes  the  place  of,  and  is  universally  superior  to,  any 
amount  of  mere  learning;  it  is  the  very  essence  of  the  best  learn- 
ing which  can  be  employed  in  the  judicial  station.  ...  As 
has  already  been  said,  many  of  his  judgments,  pronounced  while 
in  the  State  court,  relate  to  matters  of  purely  local  interest,  such 
as  the  peculiar  land  titles  of  California,  the  Mexican  pueblos,  the 
ownership  of  gold  and  silver  in  situ,  mining  and  water  rights,  etc.; 
and  this  class  of  cases  undoubtedly  required  for  their  decision  the 
greatest  amount  of  original  investigation,  tracing  of  obscure 
analogies,  and  creative  power,  and  expenditure  of  intellectual 
force  which  can  hardly  be  appreciated  by  the  profession  in  other 


64 

parts  of  the  country  who  are  unfamiliar  with  the  intricate  ques- 
tions involved.  On  the  other  hand,  many  of  his  opinions  deal 
with  subjects  of  universal  interest,  as,  for  example,  the  powers  and 
liabilities  of  municipal  and  of  private  corporations,  the  nature  of 
mortgages,  the  validity  of  Sunday  laws,  etc.  These  judgments  have 
uniformly  been  regarded  by  the  profession  and  courts  of  other  States, 
and  by  text-writers,  as  having  the  highest  authority.  .  .  . 

"The  third  distinctive  element  requiring  special  notice  is  what 
may  appropriately  be  called  his  creative  power.  By  this  designa- 
tion I  mean  his  ability  in  developing,  enlarging,  and  improving 
the  law,  by  additions  of  new  material,  whether  this  material  be 
borrowed  from  foreign  sources  or  created  by  means  of  the  legisla- 
tive function  belonging  to  all  superior  courts.  The  intellectual 
attributes  referred  to  in  this  and  in  the  preceding  head  are  en- 
tirely distinct;  they  may  co-exist  in  the  same  individual,  or  the 
first  may  be  possessed  in  a  high  degree  without  the  other.  The 
first  deals  with  the  jurisprudence  as  it  has  already  been  estab- 
lished, investigating,  examining,  and  expounding  or  applying  its 
settled  principles  and  doctrines;  the  other  is  creative  and  legisla- 
tive, employed  in  constructing  new  law,  or  reforming  and  expand- 
ing that  which  already  exists Judge  Field's  peculiar 

talent  as  a  legal  reformer  was  shown  in  his  purely  legislative  work 
done  while  a  member  of  the  State  Assembly,  and  described  in  a 
previous  division  of  this  essay.  He  exhibited  the  same  power 
and  tendency  upon  the  bench.  They  were  shown  in  his  constant 
rejection  of  ancient  common-law  dogmas,  no  matter  how  firmly 
settled  upon  authority,  which  had  become  outgrown,  obsolete,  and 
unfitted  for  the  present  condition  of  society,  and  in  the  substitu- 
tion of  more  just,  consistent,  and  practical  doctrines  adapted  to 
the  needs  of  our  own  country  and  people.  I  merely  mention,  as 
sufficient  examples  of  this  class,  his  decisions  upon  the  nature  and 
effect  of  mortgages,  and  those  concerning  the  ownership  of  gold 
and  silver  while  in  the  soil,  by  which  he  boldly  swept  away  the 
common-law  rules  on  the  subject,  with  all  the  absurd  reasoning 
upon  which  they  had  been  founded 

"The  fourth  element  of  his  judicial  character  is  his  fearlessness. 
As  the  power  to  apprehend  and  apply  principles  is  the  highest 
intellectual  quality,  so  is  a  true  fearlessness  the  highest  moral  at- 
tribute of  the  ideal  judge.  No  other  American  judge  has  so  often 
been  called  upon  to  face  popular  opposition  in  the  decision  of 


65 

controversies  involving  important  legal  questions,  in  which  large 
masses  of  the  population  were  interested,  and  on  one  side  of  which 
all  their  passions,  prejudices,  and  selfish  motives  were  fully 
aroused,  and  often  were  raging  in  the  fiercest  manner;  and  no 
other  judge  has  more  frequently  and  faithfully  discharged  his 
sacred  duty  of  deciding  according  to  his  own  enlightened  convic- 
tions of  law  and  justice,  in  complete  oblivion  of  all  external  forces, 
and  iu  absolute  fearlessness  of  the  consequences.  He  has  neither 
courted  personal  popularity  nor  shrunk  from  unpopularity  by 
means  of  his  decisions.  He  could  well  apply  to  himself  the  mem- 
orable and  noble  language  which  Lord  Mansfield  used  from  the 
bench  when  made  the  object  of  a  violent  clamor  on  account  of 
his  decisions:  'I  will  do  my  duty  uuawed.  What  am  I  to  fear? 
The  lies  of  calumny  carry  no  terror  to  me.  I  trust  that  my 
temper  of  mind,  and  the  color  and  conduct  of  my  life,  have  given 
me  a  suit  of  armor  against  these  arrows.  ...  I  wish  popu- 
larity, but  it  is  that  popularity  which  follows,  not  that  which  is 
run  after;  it  is  that  popularity  which,  sooner  or  later,  never  fails 
to  do  justice  to  the  pursuit  of  noble  ends  by  noble  means.' 

"  No  friend  of  Judge  Field  can  estimate  his  intellectual  and 
moral  fearlessness  too  highly ;  no  enemy  can  deny,  or  ever  has 
denied,  that  he  possessed  it.  He  has  repeatedly  encountered,  and 
been  compelled  to  endure,  the  bitter  hostility  of  extreme  partisans 
belonging  to  the  most  opposite  schools  of  opinion;  of  extreme 
Republicans  and  extreme  Democrats;  of  those  who  maintain  the 
dogma  of  State  sovereignty,  and  of  those  who  assert  the  absolute 
legislative  power  of  the  national  government ;  of  ignorant  and 
prejudiced  masses,  and  of  scheming  speculators  who  would  disre- 
gard all  law  and  right  in  order  to  accomplish  their  purposes.  All 
these  outbursts  of  opposition  have,  however,  died  away ;  the  justice 
and  wisdom,  as  well  as  the  law,  of  his  decisions  are  vindicated. 
That  true  popularity  has  succeeded,  among  all  intelligent  persons, 
which  in  the  words  of  Lord  Mansfield,  'never  fails  to  do  justice 
to  the  pursuit  of  noble  ends  by  noble  means.'  ....  Any 
correct  account  of  the  decisions  made  in  the  State  Supreme  Court 
concerning  the  pueblo  of  San  Francisco  and  the  titles  derived 
from  the  municipality ;  concerning  the  occupation  of  public  lands ; 
concerning  the  State  ownership  of  gold  and  silver,  and  the  claims 
of  miners  to  enter  upon  all  lands,  private  as  well  as  public,  in 
search  for  the  precious  metals ;  concerning  the  rights  of  Mexican 


66 

grantees  and  the  intruders  upon  their  lands,  and  concerning  the 
validity  of  certain  acts  done  by  the  municipal  government  of  San 
Francisco,  will  exhibit  in  the  clearest  manner  the  quality  of  rec- 
titude and  fearlessness  which  is  such  a  distinctive  element  of  his 
character.  In  many  of  the  decisions  rendered  in  the  United 
States  Supreme  Court,  indirectly  growing  out  of  the  Civil  War, 
and  directly  out  of  Congressional  legislation  enacted  in  consequence 
of  the  war,  including  those  dealing  with  the  validity  of  test-oaths, 
the  extent  and  limitations  of  martial  law,  the  trials  of  civilians 
by  military  tribunals,  the  suspension  of  the  writ  of  habeas  corpus, 
and  similar  questions  affecting  the  very  foundations  of  our  political 
institutions  and  of  our  civil  liberties — the  same  quality  was  ex- 
hibited from  a  higher  station  and  in  the  presence  of  the  whole 
nation." 

In  the  summer  of  1873  Judge  Field  was  appointed  by 
the  Governor  of  California,  in  connection  with  two  other 
persons,  to  examine  the  Codes  of  the  State,  and  prepare 
such  amendments  as  seemed  necessary  for  the  considera- 
tion of  the  Legislature.  The  Codes  had  been  reported  by 
a  commission  in  the  previous  year,  which  had  adopted 
them  principally  from  the  reports  of  the  New  York  com- 
mission. There  was  some  conflict  in  the  provisions  of 
the  different  Codes  which  prevented  their  harmonious 
working.  It  was  thought  by  the  bar  and  profession  in 
the  State  that  if  Judge  Field  would  undertake  it,  the  con- 
flicting provisions  could  be,  by  proper  amendment,  re- 
moved. At  their  suggestion,  the  Governor  appointed  him 
and  Mr.  John  W.  Dwinelle  and  Mr.  Jackson  Temple  com- 
missioners. They  entered  upon  the  labor  with  great 
cheerfulness,  and  prosecuted  it  during  the  summer  of 
1873,  and  made  a  report  to  the  Legislature,  with  the  drafts 
of  several  bills.  Nearly  all  the  amendments  proposed 
were  adopted  by  the  Legislature,  and  since  then  the  Codes 
have  worked  well  in  the  State. 

In  the  beginning  of  the  year  1877  the  Supreme  Court 
of  the  United  States,  then  sitting  in  Washington,  arrested 
its  session  for  a  case  which  had  no  precedent  in  the  his- 
tory of  the  Government.  There  was  a  disputed  Presi- 


67 

dential  election.  The  country  was  greatly  excited,  Con- 
gress was  divided,  the  Senate  being  Republican  and  the 
House  Democratic.  To  meet  a  crisis  for  which  the  Con- 
stitution made  no  provision,  a  law  was  passed  creating 
an  Electoral  Commission,  composed  of  five  Justices  of  the 
Supreme  Court,  five  Senators,  and  five  Representatives. 
In  the  act  of  Congress  Judge  Field  was  designated  one  of 
the  Commissioners,  and  sat  in  the  deliberations  upon  the 
question  whether  Mr.  Tilden  or  Mr.  Hayes  was  entitled 
to  the  electoral  votes  of  certain  States.  On  their  decision 
it  was  to  depend  .who  was  to  be  President  for  the  next  four 
years.  The  history  of  that  Commission  is  well  known. 
The  Commissioners  refused  to  go  behind  the  certificates 
forwarded  from  the  different  States,  which  declared  certain 
persons  to  have  been  appointed  electors,  and  considered 
that  their  duty  was  simply  to  announce  the  result  of  those 
certificates;  when,  by  the  very  terms  of  the  act  creating 
the  Commission,  they  were  required  to  determine — not 
merely  who  had  certificates  of  election — but  who  had 
been  duly  chosen.  The  position  taken  by  some  of  the 
Commissioners  appeared  to  him  to  be  monstrous,  and  he 
expressed  his  opinion  without  qualification.* 

*  To  the  alleged  conclusiveness  of  the  certificate  the  Judge  replied  : 
"A  certificate  is  only  prima  facie  evidence  of  the  fact  certified.  Indeed, 
I  venture  to  assert,  without  fear  of  successful  contradiction,  that,  in  the 
absence  of  positive  law  declaring  its  effect  to  he  otherwise,  a  certifi- 
cate of  any  officer  to  a  fact  is  never  held  conclusive  on  any  question  be- 
tween third  parties;  it  is  always  open  to  rebuttal.  There  are,  indeed, 
cases  where  a  party  who  has  been  induced  to  act  upon  the  certificate  of 
a  fact  may  insist  that  the  truth  of  the  certificate  shall  not  be  denied  to 
his  injury,  but  those  cases  proceed  upon  the  doctrine  of  estoppel,  which 
has  no  application  here.  The  fact  here  lo  be  ascertained  is,  who  have 
been  duly  appointed  electors  of  the  State  of  Florida,  not  who  have  the 
certificates  of  appointment.  It  is  the  election,  and  not  the  certificate, 
which  gives  the  right  to  the  office.  The  certificate,  being  only  evidence, 
can  be  overcome  by  any  evidence  which  is  in  its  nature  superior.  And 
this  is  equally  true  of  the  certificate  issued  under  the  law  of  the  State 
as  of  the  certificate  issued  under  the  act  of  Congress.  And  it  is  equally 
true  of  the  certificate  of  the  Board  of  Canvassers.  Those  officers  exer- 
cised mere  ministerial  functions;  they  possessed  no  judicial  power;  their 


In  the  year  1880  the  name  of  Judge  Field  was  promi- 
nently before  the  country  as  a  candidate  for  the  Presi- 
dency. He  had  always  been  a  Democrat,  and,  except 
during  the  Civil  War,  uniformly  acted  with  the  Demo- 
cratic party.  When  the  war  broke  out,  he  ranged  him- 
self on  the  side  of  the  Government,  and  gave  earn'est  sup- 
port to  the  administration  of  Mr.  Lincoln.  Some  of  his 
friends  think  he  contributed  as  much  as  any  one  to  keep 
California  in  the  Union ;  certainly  he  was  one  of  a  few 

determination  had  none  of  the  characteristics  or  conclusiveness  of  a 
judicial  proceeding;  it  had  been  so  decided  by  the  Supreme  Court  of  the 
State.  And  yet,  in  the  opinion  of  the  distinguished  Commissioner  from 
Indiana,  [Senator  Morton,]  and  some  other  Commissioners  from  the 
Senate  and  House  appear  to  concur  with  him,  the  determination  of  those 
canvassers,  as  expressed  by  their  certificate,  is  more  sacred  and  binding 
than  the  judgment  of  the  highest  court  of  the  land,  incapable  of  success- 
ful attack  on  any  ground  whatever. 

"  I  put,  yesterday,  to  these  gentlemen  this  question  :  Supposing  the  can- 
vassers had  made  a  mistake  in  addition  in  footing  up  the  returns,  a  mis- 
take that  changed  the  result  of  the  election,  and  acting  upon  the  supposed 
correctness  of  the  addition  they  had  issued  a  certificate  to  persons  as 
electors  who  were  not  in  fact  chosen,  and  such  persons  had  met  and  voted 
for  President  and  Vice-President,  and  transmitted  the  certificate  of  their 
votes  to  Washington,  and  afterwards,  before  the  vote  was  counted  by" 
the  two  Houses  of  Congress,  the  mistake  was  discovered — was  there  no 
remedy  ?  The  gentlemen  answered  that  there  was  none  ;  that  whatever 
mistakes  of  the  kind  may  have  been  committed  must  be  corrected  be- 
fore the  vote  was  cast  by  the  electors,  or  they  could  not  be  corrected  at 
all.  If  this  be  sound  doctrine,  then  it  follows  that  by  a  clerical  mistake 
in  arithmetical  computation  a  person  may  be  placed  in  the  Chief  Magi- 
stracy of  the  nation  against  the  will  of  the  people,  and  the  two  Houses 
of  Congress  are  powerless  to  prevent  the  wrong. 

"  But  the  gentlemen  do  not  stop  here.  I  put  the  further  question  to 
them:  Supposing  the  canvassers  were  bribed  to  alter  the  returns,  and 
thus  change  the  result,  or  they  had  entered  into  a  conspiracy  to  commit 
a  fraud  of  this  kind,  and  in  pursuance  of  the  bribery  or  conspiracy  they 
did  in  fact  tamper  with  and  alter  the  returns,  and  declare  as  elected 
persons  not  chosen  by  the  voters,  and  such  persons  had  voted  and  trans- 
mitted their  vote  to  the  President  of  the  Senate,  but  before  the  vote 
was  counted  the  fraud  was  detected  and  exposed— was  there  no  remedy? 
The  gentlemen  answered,  as  before,  that  there  was  none;  that  whatever 
fraud  may  have  existed  must  be  proceeded  against,  and  its  success  de- 
feated before  the  electors  voted ;  that  whatever  related  to  their  action 


69 

persons  who  accomplished  this.  But  when  the  war  was 
ended,  he  was  for  peace — actual  peace — not  one  in  name 
only.  All  the  oppressive  measures  taken  by  the  Repub- 
lican party  towards  the  South,  known  as  Reconstruction 
Acts,  under  which  carpet-bag  rule  was  inaugurated  and 
sustained,  with  all  its  attendant  and  subsequent  corrup- 
tion and  plunder,  were  to  him  the  object  of  detestation. 
He  expressed  opposition  to  these  measures,  and  his  course 
on  the  bench  against  test  oaths,  confiscation  acts,  and 
the  like  harsh  proceedings  attracted  the  attention  of  the 
country,  and  before  the  meeting  of  the  convention  at  Cin- 
cinnati to  nominate  a  candidate  for  Presidency  no  name 

was  then  a  closed  book.  If  this  be  sound  doctrine,  it  is  the  only  in- 
stance in  the  world  where  fraud  becomes  enshrined  and  sanctified  behind 
a  certificate  of  its  authors.  It  is  elementary  knowledge  that  fraud  viti- 
ates all  proceedings,  even  the  most  solemn ;  that  no  form  of  words,  no 
amount  of  ceremony,  and  no  solemnity  of  procedure  can  shield  it  from 
exposure  and  protect  its  structure  from  assault  and  destruction.  The 
doctrine  asserted  here  would  not  be  applied  to  uphold  the  pettiest  busi- 
ness transaction,  and  I  can  never  believe  that  the  Commission  will  give 
to  it  any  greater  weight  in  a  transaction  affecting  the  Chief  Magistracy 
of  the  nation. 

"  But  the  gentlemen  do  not  stop  here.  I  put  the  further  question  to 
them :  Supposing  the  canvassers  were  coerced  by  physical  force,  by  pistols 
presented  to  their  heads,  to  certify  to  the  election  of  persons  not  chosen 
by  the  people,  and  the  persons  thus  declared  elected  cast  the  vote  of  the 
State — was  there  no  remedy?  and  the  answer  was  the  same  as  that  given 
before.  For  any  wrong,  mistake,  fraud,  or  coercion  in  the  action  of  the 
canvassers,  say  these  gentlemen,  the  remedy  must  be  applied  before  the 
electors  have  voted ;  the  work  of  the  electors  is  done  when  they  have 
acted,  and  there  is  no  power  under  existing  law  by  which  the  wrong  can 
be  subsequently  righted. 

"  The  canvass  of  the  votes  in  Florida  was  not  completed  until  the  morn- 
ing of  the  day  of  the  meeting  of  the  electoral  college,  and  within  a  few 
hours  afterwards  its  vote  was  cast.  To  have  corrected  any  mistake  or 
fraud  during  these  hours,  by  any  proceeding  known  to  the  law,  would 
have  been  impossible.  The  position  of  these  gentlemen  is,  therefore, 
that  there  is  no  remedy,  however  great  the  mistake  or  crime  committed. 
If  this  be  sound  doctrine,  if  the  representatives  in  Congress  of  forty-two 
millions  of  people  possess  no  power  to  protect  the  country  from  the  in- 
stallation of  a  Chief  Magistrate  through  mistake,  fraud,  or  force,  we  are 
the  only  self-governing  people  of  the  world  held  in  hopeless  bondage  at 
the  mercy  of  political  jugglers  and  tricksters." 


70 

was  more  conspicuous  than  his.  On  the  first  ballot  he  re- 
ceived sixty-five  votes.  He  had  assurances  from  various 
portions  of  the  country,  and  from  men  who  were  mem- 
bers of  the  convention,  that  he  would  receive,  at  a  very 
early  stage  of  the  proceedings,  over  two  hundred  and  fifty 
votes.  It  is  quite  probable  that  such  would  have  been  the 
case,  had  he  been  earnestly  supported  by  his  own  State. 
This  might  have  been  expected  by  one  who  had  received 
such  proofs  of  his  popularity,  not  only  in  the  State,  as 
were  given  in  his  immense  majority  of  the  popular  vote 
when  a  candidate  for  the  Supreme  bench  in  California, 
but  generally  on  the  Pacific  Coast,  as  was  shown  in 
the  unanimous  recommendation  of  the  Pacific  delegation 
for  his  appointment  to  the  bench  of  the  Supreme  Court 
of  the  United  States.  But  when  the  convention  in  Cali- 
fornia assembled  to  choose  delegates  to  the  National  Con- 
vention it  was  found  that  a  very  strong  element  of  oppo- 
sition had  arisen  to  the  candidacy  of  Judge  Field,  from 
his  supposed  opinion  in  favor  of  Chinese  immigration,  a 
feeling  which  had  been,  to  a  very  great  extent, created  by 
his  decision  in  the  famous  "Queue  case,"  which  arose  in 
thiswise:  The  Legislature  of  the  State  had  passed,  in 
April,  1876,  an  act  concerning  lodging  houses  and  sleep- 
ing apartments  within  the  limits  of  incorporated  cities, 
declaring,  among  other  things,  that  any  person  found 
sleeping  or  lodging  in  a  room  or  an  apartment  containing 
less  than  five  hundred  cubic  feet  of  space  in  the  clear,  for 
each  person  occupying  it,  should  be  deemed  guilty  of  a 
misdemeanor,  and,  upon  conviction  thereof,  should  be 
punished  by  a  fine  of  not  less  than  ten  nor  more  than 
fifty  dollars,  or  imprisonment  in  the  county  jail,  or  by 
both  such  fine  and  imprisonment. 

The  plaintiff  in  the  "  Queue  case  "  was  convicted  and 
.sentenced  under  this  act  to  pay  a  fine  of  ten  dollars,  or  in 
default  of  such  payment  to  be  imprisoned  five  days  in  the 
county  jail.  Failing  to  pay  the  fine,  he  was  imprisoned. 
The  defendant,  as  sheriff  of  the  city  and  county  of  San 


71 

Francisco,  had  charge  of  the  jail,  and  during  the  im- 
prisonment of  the  plaintiff  cut  off  his  queue.  This  he 
did  under  the  assumed  authority  of  an  ordinance  passed 
by  the  city  of  San  Francisco  declaring  that  every  male 
person  imprisoned  in  the  county  jail,  under  the  judg- 
ment of  any  court  having  jurisdiction  in  criminal 
cases  in  the  city  and  county,  should,  immediately  upon 
his  arrival  at  the  jail,  have  the  hair  of  his  head  "  cut  or 
clipped  to  an  uniform  length  of  one  inch  from  the  scalp 
thereof,"  and  made  it  the  duty  of  the  sheriff  to  have  this 
provision  enforced.  The  plaintiff  thereupon  sued  the 
sheriff.  In  his  complaint  he  alleged  that  it  was  the  cus- 
tom of  Chinamen  to  shave  the  hair  from  the  front  of  the 
head  and  to  wear  the  remainder  of  it  braided  into  a  queue ; 
that  the  deprivation  of  the  queue  was  regarded  by  them 
as  a  mark  of  disgrace,  and  was  attended,  according  to 
their  religious  faith,  with  misfortune  and  suffering  after 
death ;  that  the  defendant  knew  of  this  custom  and  re- 
ligious faith  of  the  Chinese,  and  he  knew  that  the  plain- 
tiff venerated  the  custom  and  held  the  faith  ;  yet,  in  dis- 
regard of  his  rights,  inflicted  the  injury  complained  of, 
and  that  the  plaintiff  in  consequence  thereof  suffered 
great  mental  anguish,  had  been  disgraced  in  the  eyes  of 
his  friends  and  relatives,  ostracized  from  association  with 
his  friends  and  countrymen,  and  had  been  damaged  to 
the  amount  of  ten  thousand  dollars,  and  he  brought  suit 
for  the  same.  The  defendant  set  up  as  a  justification  of 
his  action  the  ordinance  of  the  city  and  county  of  San 
Francisco,  and  the  plaintiff  demurred.  The  ordinance 
was  presented  to  the  court  in  two  aspects:  First,  as  a 
punishment,  and,  second,  as  a  sanitary  measure.  As  a 
punishment,  Judge  Field  held  that  the  supervisors  could 
not  add  to  that  which  the  State  had  prescribed  for  viola- 
tion of  the  "  cubic  air  law,"  which  was  fine  or  imprison- 
ment. The  supervisors  thought  that  if  they  could  add 
to  it,  the  cutting  off  of  the  queue,  they  would  inspire  the 
Chinese  with  such  terror  that  it  would  induce  them  to 


72 

pay  the  fines  imposed  rather  than  to  suffer  imprisonment, 
which  would  discharge  the  fine  at  the  rate  of  two  dollars 
per  day.  Probably,  as  said  by  the  judge  in  his  opinion, 
"the  bastinado,»or  the  knout,  or  the  thumbscrew,  or  the 
rack  would  accomplish  the  same  end;  and  no  doubt  the 
Chinaman  would  prefer  either  of  these  means  of  torture 
to  that  which  entails  upon  him  disgrace  among  his  country- 
men, and  carries  with  it  constant  dread  of  misfortune  and 
suffering  after  death." 

Judge  Field  held  that  the  supervisors  were  not  invested 
by  the  Legislature  with  any  such  power.  As  a  sanitary 
measure,  the  Judge  held  that  under  the  law  then  existing 
it  was  not  for  the  board  of  supervisors  to  prescribe  what 
regulations  should  be  adopted  for  the  health  of  prisoners 
sent  to  jail,  but  for  the  Board  of  health,  which  alone  pos- 
sessed authority  to  prescribe  the  necessary  sanitary  meas- 
ures. 

The  Judge  went  further,  and  considered  the  measure  as 
one  directed  especially  against  the  Chinese.  The  records 
of  the  supervisors,  the  communications  of  the  mayor, 
and  the  debates  of  the  members  showed  that  the  measure 
was  intended  solely  for  the  Chinese,  and  not  for  all  per- 
sons. The  ordinance  directing  it  was  called  the  Queue 
Ordinance.  It  was  not  enforced  against  others.  It  was 
directed  and  enforced  solely  against  the  Chinese.  It  was 
held  that  contemporary  history  was  admissible  to  show 
the  object  of  legislation;  that  only  in  that  way  were  gen- 
eral terms,  used  in  the  legislation  of  the  South  when 
slavery  existed,  limited.  With  statutes  declaring  the 
equality  of  all  men,  slavery  could  not  otherwise  have. ex- 
isted. 

The  Queue  ordinance,  considered  in  the  light  of  the 
history  attending  its  passage,  was  treated  as  special  legis- 
lation on  the  part  of  the  supervisors  directed  against  a 
class,  and  as  imposing  upon  the  Chinese  a  degrading  and 
cruel  punishment,  and  as  such  Judge  Field  held  that  it 
was  forbidden  by  that  clause  of  the  Fourteenth  Amend- 


73 

ment  to  the  Constitution  which  declares  that  no  State 
"shall  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws."  He  was  of  opinion  that 
this  inhibition  upon  the  State  applies  to  all  the  instru- 
mentalities and  agencies  employed  in  the  administration 
of  its  government;  to  its  executive,  legislative,  and  judi- 
cial departments;  and  to  the  subordinate  legislative 
bodies  of  its  counties  and  cities.  All  this  seems  plainly 
and  obviously  just;  and  yet  such  was  the  feeling  against 
the  Chinese,  that  the  decision  created  great  bitterness 
towards  the  Judge,  and  lost  him  half  the  vote  of  Cali- 
fornia in  the  National  Convention.  It  prevented  an 
united  presentation  of  his  name  before  the  convention. 
But  little  did  that  disturb  him.  He  followed  his  own 
sense  of  right,  and  left  consequences  to  take  care  of  them- 
selves. Could  he  have  foreseen  the  result  of  his  decision 
in  its  effect  upon  his  political  fortunes,  he  would  not 
have  decided  otherwise,  nor  delayed  the  decision  a  single 
hour. 

Judge  Field  had  never  favored  the  indiscriminate  im- 
migration of  Chinese.  He  had  seen  the  difficulties  of 
races  so  different  from  each  other  as  the  Caucasian  and 
the  Mongolian  living  in  peace  and  working  in  harmony, 
side  by  side,  but  he  knew  that  the  treaty  between  the 
United  States  and  Chinese  governments  pledged  the  honor 
of  our  country  that  the  subjects  of  that  empire  should 
have  all  the  privileges  and  immunities  of  subjects  of  the 
most  favored  nation,  and  he  opposed  all  legislation  of 
the  State  which  sought  to  deprive  the  Chinese  laborers  of 
the  protection  which  the  treaty  afforded.  He  said  that 
the  power  to  determine  what  foreigners  should  be  permit- 
ted to  come  into  the  country,  and  to  remain  here,  was  not 
in  the  State  but  in  the  General  Government,  and  that  the 
State  coiflld  not  interfere  with  the  General  Government's 
control  in  the  matter.  That  if  Kentucky,  for  example, 
wished  to  have  Chinese  come  into  it,  the  State  of  Cali- 
fornia could  not  forbid  it;  that  the  only  power  which 
10 


74 

could  assent  or  dissent  from  that  measure  was  the  General 
Government.  He  therefore  set  aside,  or  prohibited,  the 
enforcement  of  such  State  laws  or  city  ordinances  as 
interfered  with  the  full  enjoyment  of  the  privileges  and 
immunities  which  the  treaty  with  China  stipulated.  The 
fact  that  he  thus  decided  created  the  impression  that  he 
himself  was  in  favor  of  the  immigration  of  Chinese 
laborers;  at  any  rate,  politicians  thus  charged  him,  and 
succeeded  in  creating  such  a  general  impression.  But,  on 
the  contrary,  he  was  not  in  favor  of  indiscriminate  immi- 
gration of  Chinese.  He  thought  that  Chinese  laborers 
should  be  excluded,  and  the  admission  of  others  restricted 
in  many  particulars.  In  fact,  his  sentiments  on  that 
subject  were  in  accordance  with  the  general  opinion 
which  now  prevails. 

This  political  campaign  was  a  novel  experience.  His 
candidacy  was  not  a  matter  of  his  own  seeking;  it  was 
urged  upon  him  by  friends  who  thought  that  if  elected 
he  might  do  something  to  bring  the  two  sections  of  the 
country  into  more  amicable  relations  than  had  for  a  long 
time  existed. 

As  the  year  1884  approached,  the  name  of  Judge  Field 
was  again  frequently  mentioned  as  a  candidate  for  the 
Presidency.  But  many  causes  contributed  to  render  such 
a  candidacy  unadvisable,  and  no  one  perceived  this  clearer 
than  himself.  Popular  opinion  is  very  apt  to  attribute 
to  a  judicial  officer  the  approval  of  measures  which  he 
only  decides  to  be  constitutional,  that  is,  within  the  legis- 
lative power  under  the  Constitution.  He  is  therefore 
often  condemned  by  persons  from  a  mere  consideration  of 
the  wisdom  and  policy,  or  want  of  wisdom  and  the  im- 
policy of  such  measure's.  The  Judge's  course  in  main- 
taining the  rights  and  privileges  of  the  Chinese  in  the 
country,  under  the  treaty  with  the  Chinese  empire,  was 
almost  universally  attributed  to  his  favoring  the  immi- 
gration into  the  country  of  Chinese  laborers,  and  yet 
nothing  could  be  farther  from  the  truth. 


75 

So,  also,  a  disposition  to  favor  the  great  landholders, 
under  Mexican  grants,  against  settlers  was  ascribed  to 
him  because  he  regarded  the  stipulations  of  the  treaty 
with  Mexico  for  the  protection  of  the  property  of  such 
holders  as  obligatory  upon  the  court.  He,  of  course,  could 
not  consider  the  policy  or  wisdom  of  making  such  large 
grants  by  the  Mexican  government.  The  only  question 
with  him  was  as  to  their  validity  and  extent.  These 
matters  being  ascertained,  his  legal  duty  was  plain,  though 
great  hardships  sometimes  followed,  and  necessarily,  from 
his  decisions.  Of  the  immigrants  who  came  to  California 
upon  the  discovery  of  gold,  a  large  number  sought  farm- 
ing lands  upon  which  to  settle,  and  they  looked  upon  the 
large  grants  of  the  Mexican  government — many  of  them 
embracing  several  square  leagues  of  land — as  a  wrong, 
which  they  could  not  appreciate  and  to  which  they  could 
not  be  reconciled.  In  many  cases  they  denounced  the 
validity  of  the  grants,  and,  when  in  any  case  they  ad- 
mitted one  to  be  valid,  if  its  boundaries  embraced  a 
greater  quantity  than  that  specially  granted,  they  would 
often  undertake  to  locate  the  surplus  and  then  to  appro- 
priate it,  not  seeing  that  if  one  immigrant  could  de- 
termine that  what  he  took  was  a  portion  of  such  surplus, 
another  immigrant  might,  with  equal  right,  determine 
that  another  portion  was  a  part  of  such  surplus  and  take 
possession  of  it,  and  that  thus  by  several  settlers,  each 
selecting  what  he  deemed  to  be  the  surplus,  the  grantee 
might  be  deprived  of  his  entire  property.*  It  was  the  duty 
of  the  officers  of  the  Mexican  government  to  survey  and 
measure  off  the  actual  quantity  granted  and  deliver  it  to 
the  grantee,  leaving  the  surplus  open  to  the  public,  and 
that  duty,  when  not  exercised  by  the  former  government, 


*"And  thus,"  as  said  by  the  Supreme  Court,  "  the  confirmees  would 
soon  he  stripped  of  the  land  which  was  intended  by  the  government  as 
a  donation  to  its  grantees,  whose  interests  they  have  acquired,  for  the 
benefit  of  parties  who  were  never  in  its  contemplation."  (Van  Reynegan 
v.  Bolbia,  95  U.  S.  36.) 


76 

devolved  upon  the  new  government,  yet  it  was  neglected 
in  many  cases  for  years,  leaving  the  title  unsettled  and 
leading  to  harassing  litigation.  The  Judge,  in  protect- 
ing the  rights  of  grantees,  naturally  drew  upon  him  the 
hostility  of  all  who  sought  to  settle  upon  the  lands  of 
others,  and  was  often  denounced  in  unmeasured  'terms  as 
controlled  by  monopolists  and  land  grabbers. 

There  was  also  another  great  cause  of  discontent  with 
him  at  this  time,  and  that  was  his  application  of  the 
Fourteenth  Amendment,  declaring  that  "no  State  shall 
deny  to  any  person  the  equal  protection  of  the  laws,"  to 
the  taxation  of  railway  property.  The  constitution  of 
California  required  the  deduction  of  mortgages  in  the 
assessment  of  property  of  individuals  for  taxation,  the 
mortgages  to  be  assessed  and  taxed  against  the  mortgagees, 
and  the  value  of  the  property  after  such  deduction  to  be 
assessed  and  taxed  against  the  owner  of  the  fee.  But  this 
mode  of  assessment  and  valuation  of  property  was  not 
made  applicable  to  property  of  railroads  and  public  cor- 
porations. Judge  Field  disregarded  this  distinction,  and 
applied  the  rule  of  uniformity  to  the  property  of  railroad 
corporations  as  well  as  that  of  individuals.*  This  drew 

*In  illustration  of  the  inequality  produced,  the  court,  by  Judge  Field, 
said  :  "  Whenever  an  individual  holds  property  encumbered  with  a  mort- 
gage lie  is  assessed  at  its  value,  after  deducting  from  it  the  amount  of  the 
mortgage.  If  a  railroad  company  holds  property  subject  to  a  mortgage, 
it  is  assessed  at  its  full  value,  without  any  deduction  for  the  mortgage; 
that  is,  as  though  the  property  were  unencumbered.  The  inequality 
and  discriminating  character  of  the  procedure  will  be  apparent  by  an 
illustration  given  by  counsel.  Suppose  a  private  person  owns  a  farm 
which  is  valued  at  $100,000,  and  is  encumbered  with  a  mortgage  amount- 
ing to  $80,000 ;  he  is,  in  that  case,  assessed  at  $20,000  ;  if  the  rate  of  taxa- 
tion be  two  per  cent,  he  would  pay  $400  taxes.  If  a  railroad  corpora- 
tion owns  an  adjoining  tract  worth  $100,000,  which  is  also  encumbered 
by  a  mortgage  for  $80,000,  it  would  be  assessed  for  $100,000,  and  be  re- 
quired to  pay  $2,000  taxes,  or  five  times  as  much  as  the  private  person. 
There  is  here  a  discrimination  too  palpable  and  gross  to  be  questioned, 
and  such  is  the  nature  of  the  discrimination  made  against  the  Southern 
Pacific  Railroad  Company  in  the  taxation  of  its  property.  Nothing  can 
be  clearer  than  that  the  rule  of  equality  and  uniformity  is  thus  entirely 
disregarded. 


upon  him  a  great  deal  of  abuse,  particularly  from  the 
Democratic  party.  Their  papers  were  filled  with  denun- 
ciations of  him,  which  were  especially  fierce  and  gross 

"The  Fourteenth  Amendment  of  the  Constitution,  in  declaring  that 
no  State  shall  deny  to  any  person  within  its  jurisdiction  the  equal  pro- 
tection of  the  laws,  imposes  a  limitation  upon  the  exercise  of  all  the 
powers  of  the  State,  which  can  touch  the  individual  or  his  property,  in- 
cluding among  them  that  of  taxation.  Whatever  the  State  may  do,  it 
cannot  deprive  any  one  within  its  jurisdiction  of  the  equal  protection  of 
the  laws,  and  by  equal  protection  of  the  laws  is  meant  equal  security 
under  them  to  every  one  on  similar  terms,  in  his  life,  his  liberty,  his 
property,  and  in  the  pursuit  of  happiness.  It  not  only  implies  the  right 
of  each  to  resort,  on  the  same  terms  with  others,  to  the  courts  of  the 
country  for  the  security  of  his  person  and  property,  the  prevention  and 
redress  of  wrongs  and  the  enforcement  of  contracts,  but  also  his  exemp- 
tion from  any  greater  burdens  or  charges  than  such  as  are  equally  im- 
posed upon  all  others  under  like  circumstances. 

"  Unequal  exactions  in  every  form,  or  under  any  pretense,  are  abso- 
lutely forbidden;  and,  of  course,  unequal  taxation,  for  it  is  in  that  form 
that  oppressive  burdens  are  usually  laid.  It  is  not  possible  to  conceive 
of  equal  protection  under  any  system  of  laws,  where  arbitrary  and  un- 
equal taxation  is  permissible;  where  different  persons  may  be  taxed  on 
their  property  of  the  same  kind,  similarly  situated,  at  different  rates; 
where,  for  instance,  one  may  be  taxed  at  one  per  cent,  on  the  value  of 
his  property,  another  at  two  or  five  per  cent.,  or  where  one  may  be  thus 
taxed  according  to  his  color,  because  he  is  white,  or  black,  or  brown,  or 
yellow,  or  according  to  any  other  rule  than  that  of  a  fixed  rate  propor- 
tionate to  the  value  of  his  property. 

"  Though  the  occasion  of  the  amendment  was  the  supposed  denial  of 
rights  in  some  States  to  newly-made  citizens  of  the  African  race,  and  the 
supposed  hostility  to  Union  men,  the  generality  of  the  language  used 
extends  the  protection  of  its  provisions  to  persons  of  every  race  and  con- 
dition against  discriminating  and  hostile  State  action  of  any  kind.  Its 
effect,  in  preserving  free  institutions  and  preventing  harsh  and  oppresive 
State  legislation,  can  hardly  be  overstated.  When  burdens  are  placed  upon 
particular  classes  or  individuals,  whilst  the  majority  of  the  people  are 
exempted,  little  heed  may  be  paid  to  the  complaints  of  those  affected. 
Oppression  thus  becomes  possible  and  lasting.  But  a  burdensome  law, 
operating  equally  upon  all,  will  soon  create  a  movement  for  its  repeal. 
With  the  amendment  enforced,  a  bad  or  an  oppressive  State  law  will  not 
long  be  left  on  any  statute  book." 

As  to  private  corporations  being  included  under  the  designation  of 
persons  in  the  Fourteenth  Amendment,  the  court,  by  Judge  Field,  said: 

"  Private  corporations,  and  under  this  head,  with  the  exception  of  sole 
corporations,  with  which  we  are  not  now  dealing,  all  corporations  other 


78 

when  they  came,  as  many  did,  from  leaders  of  the  assault, 
some  of  whom  had  lost,  by  decisions  rendered,  large  contin- 
gent fees.  The  Judge  pursued  the  even  tenor  of  his 

than  those  which  are  public  are  included — private  corporations  consist  of 
an  association  of  individuals  united  for  some  lawful  purpose,  and  per- 
mitted to  use  a  common  name  in  their  business,  and  have  succession  of 
membership  without  dissolution.  As  said  by  Chief  Justice  Marshall : 
'The  great  object  of  an  incorporation  is  to  bestow  the  character  and 
properties  of  individuality  on  a  collective  and  changing  body  of  men.' 
(Providence  Bank  v.  Billings,  4  Pet.  514,  562.)  In  this  State  they  are 
formed  under  general  laws.  By  complying  with  certain  prescribed  forms 
any  five  persons  may  thus  associate  themselves.  In  that  sense  corpora- 
tions are  creatures  of  the  State;  they  could  not  exist  independently  of 
the  law,  and  the  law  may,  of  course,  prescribe  any  conditions  not  pro- 
hibited by  the  Constitution  of  the  United  States,  upon  which  they  may 
be  formed  and  continued.  But  the  members  do  not,  because  of  such 
association,  lose  their  rights  to  protection,  and  equality  of  protection. 
They  continue,  notwithstanding,  to  possess  the  same  right  to  life  and 
liberty  as  before,  and  also  to  their  property,  except  as  they  may  have 
stipulated  otherwise 

"  Whatever  affects  the  property  of  the  corporation,  that  is,  of  all  the 
members  united  by  the  common  name,  necessarily  affects  their  interests. 
If  all  the  members  of  the  corporation  die  or  withdraw  from  the  associa- 
tion, the  corporation  is  dead;  it  lives,  and  can  live  only,  through  its 
members.  When  they  disappear  the  corporation  disappears.  Whatever 
confiscates  or  imposes  burdens  on  its  property,  confiscates  or  imposes 
burdens  on  their  property;  otherwise  nobody  would  be  injured  by  the 
proceeding.  Whatever  advances  the  prosperity  or  wealth  of  the  corpo- 
ration, advances  proportionately  the  prosperity  and  business  of  the  cor- 
porators; otherwise  no  one  would  be  benefited.  It  is  impossible  to  con- 
ceive of  a  corporation  suffering  an  injury  or  reaping  a  benefit  except 
through  its  members.  The  legal  entity,  the  metaphysical  being  that  is 
called  a  corporation,  cannot  feel  either.  So,  therefore,  whenever  a  pro- 
vision of  the  Constitution  or  of  a  law  guarantees  to  persons  protection 
in  their  property  or  affords  to  them  the  means  for  its  protection,  or  pro- 
hibits injurious  legislation  affecting  it,  the  benefits  of  the  provision  or 
law  are  extended  to  corporations,  not  to  the  name  under  which  differ- 
ent persons  are  united,  but  to  the  individuals  composing  the  union.  The 
courts  will  always  look  through  the  name  to  see  and  protect  those  whom 
the  name  represents." 

Since  the  above  decision  the  Supreme  Court  has  expressly  held  that  a 
private  corporation  is  included  under  the  designation  of  person  in  the 
Fourteenth  Amendment.  (Santa  Clara  County  v.  Southern  Pacific  Rail- 
road Company,  118  U.  S.  396;  Pembina  Mining  Co.  v.  Pennsylvania,  125 
U.  S.  181,  189.) 


79 

way,  amidst  the  torrent  of- abuse,  but  he  recognized  that 
it  was  not  the  time  for  him  to  look  for  political  sup- 
port. He  therefore  positively  declined  to  be  a  candidate 
for  the  Presidency.  He  wrote  a  letter  to  Mr.  Johnson,  at 
the  time  editor  of  the  Alta- California,  to  that  effect,  which 
was  published  in  that  paper.  It  is  given  in  a  note  be- 
low.* 

He  supposed,  with  its  publication,  his  name  would  be 
left  out  of  consideration,  but  it  was  not  so  destined.  Some 
weeks  after  that  letter  was  published  a  delegation  of  citi- 
zens from  Missouri,  headed  by  Mr.  Mum  ford,  the  editor 
and  proprietor  of  the  Kansas  City  Times,  called  upon  him 
at  his  residence  in  Washington,  and  stated  that  they 
wished  to  use  his  name  as  a  candidate  before  the  National 
Convention.  The  following  is  the  account  given  by  Mr. 
Mumford  of  the  interview: 

"  I  came  to  Washington,  and,  accompanied  by  other  gentle- 
men, called  on  Judge  Field  to  make  known  the  object  of  our  mis- 
sion. In  reply  to  the  express  wish  to  use  his  name  as  a  candidate 


*  WASHINGTON,  D.  C.,  March  20,  1884. 
MY  DEAR  MR.  JOHNSON  : 

Your  letter  of  the  2d  instant  was  received  a  few  days  since.  For  the 
kind  words  it  contained,  and  the  interest  it  manifested  to  advance  my 
supposed  political  aspirations,  I  give  you  many  thanks.  But  in  truth  I 
have  not  the  aspirations  you  attribute  to  me.  It  is  only  out  of  deference 
to  the  wishes  of  friends  that  I  have  not  long  since  put  in  print  a  decla- 
ration that  my  name  cannot  be  used  with  my  consent  in  any  political 
contest.  I  have  looked  over  the  whole  matter,  and  months  ago,  as  I  told 
you  last  summer,  I  came  to  the  conclusion  that  it  will  serve  no  useful 
purpose  to  bring  me  out  as  a  candidate  for  the  Presidential  nomination. 
I  am  not  insensible  to  the  honor  of  having  a  favorable  delegation  from 
California.  I  should  feel  proud  of  the  support  of  the  State,  but  there  is 
no  use  in  disguising  the  fact  that  owing  to  prejudices  in  certain  quarters 
it  will  be  difficult  to  obtain  it.  I  shall  certainly  not  deny  my  record  to 
secure  any  one's  support. 

My  judicial  opinions  on  subjects  of  interest  in  California — the  position 
of  the  Chinese  in  the  State,  the  taxation  of  property  of  railways,  and 
the  Mexican  land  grants — have,  lam  aware,  given  offense  to  a  large  num- 
ber of  the  people  who  would  have  had  me  disregard  the  law,  the  treaties 
with  China  and  Mexico,  and  the  Constitution,  to  carry  out  their  views 
and  schemes.  I  could  not  thus  do  violence  to  my  convictions  of  duty — 


for  the  Presidential  nomination,  Judge  Field  said :  '  While  I  am 
not  insensible  to  the  high  compliment  paid  to  me  by  this  expres- 
sion of  your  preference  and  confidence,  I  must  frankly  say  that  I 
have  long  since  ceased  to  entertain  political  aspirations,  and  have 
frequently  so  advised  my  nearest  friends.  Moreover,  I  do  not  consider 
myself  an  available  candidate,  in  any  sense,  for  the  very  substantial 
reason  that  the  candidate  for  the  Presidential  nomination  should 
be  one  who  would  receive  the  united  support  in  the  convention 
of  the  delegation  from  his  own  State,  and  this  I  could  not  reason- 
ably expect  to  command.  I  confess  it  would  be  a  source  of  grati- 
fication to  me  to  be  supported  by  the  State  of  California,  but  it  is 
a  patent  fact,  which  it  would  be  useless  to  deny,  that  prejudices 
exist  in  certain  quarters  which  I  cannot  hope  to  overcome  with- 
out stultification  of  my  official  record.'  When  being  asked  to 
explain  what  particular  official  record  he  referred  to,  he  stated  the 
substance  of  what  is  contained  in  his  Better  to  Mr.  Johnson,  given 
in  the  above  note. 

the  thing  was  impossible.  Indeed,  I  would  not  have  changed  a  line  of 
what  I  wrote,  had  I  known  beforehand  that  for  it  I  should  lose  the  sup- 
port of  California,  nor  would  I  now  change  a  line  to  secure  the  vote  of 
every  man  in  the  State. 

One  of  these  days  our  good  people  will  see  their  error,  and  then  they 
will  do  me  full  justice.  I  am  content  to  wait  for  their  ultimate  judg- 
ment of  approval,  which,  sooner  or  later,  will  certainly  come.  They  will 
then  admit  that  a  just  judge  could  not  ignore  the  law  or  treaties,  or  the 
Constitution,  however  offensive  and  detested  the  persons  protected  by 
them  may  have  been.  And  as  to  railway  taxation,  all  will  then  acknowl- 
edge that,  under  any  just  administration  of  government,  associated  capi- 
tal cannot  be  assessed  on  different  principles  and  taxed  at  different  rates 
from  individual  capital.  And  as  to  the  Mexican  grants,  it  will  not  then 
be  questioned  that  the  grantees  had  a  right  to  stand  upon  the  plighted 
faith  of  the  Government,  under  the  treaty  which  gave  us  the  magnificent 
domain  of  California,  that  they  should  be  protected  in  all  their  rights  of 
property.  But  enough  of  this.  Sufficient  it  is  to  say  that  my  strong  in- 
clination has  long  been,  and  still  is,  against  being  in  the  political  contest 
of  this  year.  I  am  content  to  remain  where  I  am.  There  I  may  do  some 
good,  and,  after  all,  position  is  only  desirable  as  a  means  of  doing  good. 

Please,  therefore,  at  once  say  in  the  AUa-  California,  in  some  appropriate 
form,  that  I  am  not  a  candidate  for  any  political  position,  and  do  not  wish 
to  be  so  considered  by  any  one. 

I  am,  very  truly  yours, 

(Signed)        STEPHEN  J.  FIELD. 

Hon.  JAMES  A.  JOHNSON. 


81 

"The  delegation  united  in  expressing  to  him  the  conviction 
that  the  support  of  California  in  the  convention  was  immaterial, 
in  -view  of  the  fact  that  his  candidacy  would  be  advanced  from 
national,  rather  than  from  local,  standpoints,  and  for  the  best  in- 
terests of  Democratic  success.  They  thereupon  pressed  him  to 
know  whether,  in  the  event  of  his  nomination,  he  would  accept 
the  same.  Judge  Field  reflected  for  a  moment,  and  replied: 
'Such  a  contingency  is  scarcely  possible.  I  have  made  no  effort 
to  secure  the  nomination,  and  have  discouraged  all  efforts  on  the 
part  of  my  friends  to  that  end.  But  there  is  no  instance  in  the 
history  of  the  country  where  the  nomination  of  a  National  Con- 
vention actually  tendered  has  been  refused,  and  I  have  no  idea 
that  I  should  prove  an  exception.'" 

Notwithstanding  this  interview,  the  gentlemen  from 
Missouri  kand  other  friends  of  the  Judge  in  California 
continued  to  make  reference  to  him  as  a  possible  candi- 
date, and  to  advocate  his  nomination. 

That  course  only  increased  the  bitterness  of  hostile 
partisans  in  California,  and  led  to  his  denunciation  in  the 
State  convention  called  to  appoint  delegates  to  the  Na- 
tional Convention,  a  denunciation  which  did  not  disturb 
him  in  the  least.  In  referring  to  it  he  simply  remarked 
that  far  better  and  wiser  men  than  himself  had  been 
reviled,  persecuted,  and  driven  from  their  country  for 
causes  which  were  afterwards  repeated  to  their  honor,  and 
for  which  monuments  were  erected  to  their  memory;  and 
he  was  content  to  abide  his  time.  But  not  so  others.  The 
most  respectable  persons  of  the  community  were  indig- 
nant at  the  conduct  of  the  convention.* 

*The  AHa-California,  in  its  issue  of  June  15,  1884,  said: 
"  The  Democratic  convention  did  some  extraordinary  things,  but  the 
most  extraordinary  of  all  was  the  passage  of  the  resolution  opposing  the 
candidacy  of  Mr.  Justice  Field  for  the  Presidency.  Under  any  circum- 
stances a  resolution  by  a  State  convention,  opposing  the  candidacy  of  a 
distinguished  member  of  the  party,  would  be  out  of  place,  and  the  first 
recorded  case  of  the  kind  occurred  at  Stockton.  But  when  we  consider 
that  the  denunciation  was  directed  against  a  citizen  of  our  own  State,  a 
citizen  who  has  done  more  for  the  State  than  any  other,  a  citizen  whose 
person  and  character  are  always  mentioned  with  genuine  affection  by  the 
best  elements  of  California  society,  then  it  becomes  a  matter  of  profound- 
11 


82 

In  the  summer  of  1881,  Judge  Field  went  to  Europe, 
and  remained  abroad  several  months,  extending  his 
journey  to  the  East,  and  revisiting  Athens  and  Smyrna, 

est  astonishment  that  any  body  of  men,  with  the  slightest  claims  to 
decency,  could  have  stumbled  so  far  from  the  path  of  honorable  political 
warfare.  What  were  the  causes  that  led  up  to  the  passage  of  this  reso- 
lution will  naturally  be  asked.  It  must  be  remembered  that  Demo- 
cratic local  politics  are  in  confusion  in  this  State,  and  that  such  has  been 
the  case  since  the  great  upheaval  of  the  sand-lot.  In  the  midst  of  that, 
uprising  against  property  and  all  the  decencies  of  society,  and  just  as 
that  element  had  overthrown  all  political  parties  and  shattered  the  De- 
mocracy to  fragments,  and  whilst  the  slogan  of  the  sand-lot, '  the  Chinese 
must  go,'  was  still  ringing  in  the  ears  of  the  terrified  people,  it  became 
the  duty  of  Mr.  Justice  Field  to  sit  in  judgment  upon  the  famous  queue 
ordinance.  He  decided  the  ordinance  to  be  unconstitutional,  and  also 
decided  in  another  suit  against  Chinese  lauudrymen,  brought  for  vexa- 
tion and  blackmail,  that  Chinamen  must  be  governed  by  the  general  laws 
of  the  land,  and  that  the  business  conducted  by  them  must  be  governed 
by  general  laws,  applicable  to  the  class  of  busines's,  and  not  by  laws 
directed  solely  against  them  as  a  class.  The  decisions  of  Mr.  Justice 
Field,  striking  down  the  wretched,  abortive,  and  unconstitutional  legis- 
lation of  this  State  with  reference  to  the  Chinese,  were  received  with 
openly  expressed  hostility  and  denunciation  by  the  sand-lotters. 

"  Then  came  the  New  Constitution  craze,  during  which  all  the  dissatis- 
fied elements  of  society  united  with  the  sand-lot  in  the  construction  and 
adoption  of  a  constitution  which  violated  every  principle  of  political 
economy  and  acknowledged  axiom  of  the  science  of  government.  Mr. 
Justice  Field  was  compelled  in  the  discharge  of  his  duty  to  strike  null 
certain  provisions  of  this  constitution  which  discriminated  in  the  matter 
of  taxation  against  railroad  and  other  quasi-public  corporations  and  sub- 
jected them  to  a  mode  and  measure  of  assessment  not  applied  to  natural 
persons.  Mr.  Justice  Field  held  that  corporations  were  mere  aggrega- 
tions of  natural  persons  and  were  as  much  entitled  to  the  equal  protec- 
tion of  the  law  as  natural  persons,  and  also  held  that  the  provisions  in 
question  violated  the  Fourteenth  Amendment,  in  that  they  denied  to 
corporations  the  equal  protection  of  the  laws.  This  decision  aroused 
the  hostility  of  the  sand-lot  and  the  supporters  of  the  New  Constitution. 
Finally  the  Workingmen's  party  and  the  New  Constitution  party  became 
disintegrated  and  the  members  went  back  to  their  old  affiliations,  the 
majority  drifting  back  to  the  Democratic  party.  .  .  .  And  so  the  late 
convention  was  organized,  its  members  noisy,  tumultuous,  violent  and  dema- 
gogical, and  its  action  the  exact  reproduction  of  the  scenes  which  used  to  occur 
in  the  old  sand-lot  and  New  Constitution  parties." 

The  Argonaut  in  its  issue  of  June  28,  1884,  said : 

"  Nothing  has  occurred  in  the  history  of  California  which  has  caused 


83 

where  he  had  spent  several  happy  years  of  his  boyhood 
half  a  century  before. 

When  he  was  at  Smyrna,  in  company  with  the  consul, 
he  called  upon  the  Pasha.  Fifty  years  before  he  had 
called  upon  the  then  Pasha  in  company  with  Commodore 
Porter.  That  officer  had  been  appointed  by  President 
Jackson,  in  1831,  charge  d'affairs  to  the  Sublime  Porte. 
On  his  way  to  Constantinople  he  stopped  at  Smyrna,  or  sub- 
greater  mortification  and  regret  to  its  intelligent  citizens  than  the  conduct 
of  the  Democratic  party,  as  indicated  by  its  proceedings  in  the  State  con  v  en  - 
tion  toward  Mr.  Justice  Stephen  J.  Field.  This  gentlemen's  high  standing 
is  acknowledged  in  other  lands  and  other  States.  His  pre-eminent  ability 
is  recognized.  He  is  justly  eminent  for  his  splendid  talents.  .  .  . 
He  has  filled  with  honor  the  highest  judicial-  position  in  our  State. 
He  fills  with  honor  his  present  position  upon  the  Supreme  Bench  of 
the  United  States.  He  has  impressed  himself  upon  every  page  of  our 
history.  His  work  is  seen  in  our  legislative  and  judicial  systems  as  a 
creation.  He  molded  our  land  laws;  he  established  our  water  code;  he 
formulated  our  municipal  governments;  he  is  written  all  over  that  chap- 
ter in  the  history  of  California  which  enabled  an  American  community 
to  enter  a  conquered  territory,  to  come  into  a  land  of  strange  language 
and  civil  law,  to  successfully  establish  an  American  State,  and  to  suc- 
cessfully maintain  itself  in  the  presence  of  invading  barbarism.  Judge 
Field  has  displayed  the  fearlessness  of  his  judicial  courage  in  breasting 
the  waves  of  popular  violence,  and  in  daring  to  hold  in  contempt  the 
worthlessness  of  public  clamor.  In  the  test-oath  cases  he  displayed  an 
adherence  to  principles  which  reached  the  sublimity  of  judicial  firmness 
and  independence— decisions  which, in  theheated  passions  of  the  moment, 
turned  upon  him  a  torrent  of  unreserved  abuse.  This  he  has  outlived 
and  survived,  receiving  the  grateful  recognition  of  intelligent  men  North 
and  South,  and  intelligent  lawyers  everywhere.  In  rebuking  the  absurd 
attempts  of  California  demagogues  to  violate  every  rule  of  law  and 
humanity  in  reference  to  the  Chinese,  he  again  demonstrated  that  in  his 
loyalty  to  principle  he  was  not  to  be  turned  aside.  In  the  railroad  cases, 
and  all  other  cases  which  he  has  been  called  upon  to  determine,  he  has 

illustrated  his  fidelity  to  the  laws His  respect  for  the  law 

is  so  profound  and  his  knowledge  of  it  so  intimate,  that  he  could  not 
violate  its  fundamental  principles  to  subserve  his  personal  advancement, 
if  he  would.  These  judicial  decisions  have  brought  upon  him  all  the  vile 
hatred  of  the  meaner  and  more  ignorant  of  that  class  of  Democratic, 
Sand-lot,  and  New  Constitution  Democrats  who  have  crawled  to  the  sur- 
face of  the  Democratic  party  in  this  State.  Democratic  ignorance  and 
malignity  culminated  at  Stockton.  The  Democratic  convention  was  the 
apothesis  of  everything  which  was  base,  and  cowardly,  and  contemptible." 


84 

sequently  visited  it,  and  whilst  there  collected  all  the  Amer- 
icans he  could,  and  called  with  them  upon  the  Pasha.  The 
Judge  was  then  fourteen  years  of  age,  and  he  accompanied 
the  others.  A  dragoman  went  with  them,  and  as  they  en- 
tered the  presence  of  the  Pasha  the  dragoman  kneeled  and 
kissed  the  hem  of  his  garment,  and  took  a  seat  at  his 
feet  where  he  remained  during  the  interview.  The  Pasha 
was  dressed  in  the  flowing  robes  of  the  Turkish  costume, 
and  wore  a  turban.  He  was  seated  on  a  divan,  and  as 
the  party,  which  consisted  of  about  twelve  persons,  entered 
the  room,  he  beckoned  them  to  be  seated  by  his  side. 
Chibouks  and  coffee  were  brought.  One  circumstance  of 
the  interview  the  Judge  distinctly  remembers  in  the  con- 
versation between  the  Pasha  and  the  Commodore.  The 
Pasha  said  to  him:  "I  see  that  you  are  Commodore; 
where  is  the  Admiral  of  your  navy?"  The  Commodore, 
turning  around,  said,  "Our  Admirals  are  in  the  future," 
and  pointed  to  Field,  then,  as  before  stated,  a  boy  of 
fourteen  years  of  age.  Some  years  afterwards,  when  at 
Washington,  the  Judge  related  this  story  to  the  son  of 
the  great  Commodore,  who  was  himself  an  Admiral,  and 
it  seemed  to  please  him  very  much.  When  the  Judge 
called  in  1881,  with  the  American  consul,  upon  the  suc- 
cessor of  this  Pasha,  he  was  asked  if  that  was  his  first 
visit.  He  replied,  " No,  I  was  here  il  y  a  cinquante  am" 
that  is,  fifty  years  ago.  The  Pasha  said,  "  Cinque  ans"  that 
is,  five  years  ago.  "No,"  he  replied,  "un  demi  siecle"ihfat 
is,  half  a  century  ago.  "  You  must,  then,  see,"  said  the 
Pasha,  " a  great  change  now."  "Nowhere  so  much,"  he 
replied,  "as  in  this  room."  To  quote  his  language: 
"  When  I  came  here  fifty  years  ago  I  saw  your  predecessor 
in  flowing  robes,  wearing  a  turban,  sitting  on  a  divan, 
and  we  only  conversed  with  him  through  a  dragoman. 
I  see  you  in  European  dress,  wearing  a  fez,  and  I  carry  on 
conversation  with  you  in  French.  I  see,  instead  of  a 
divan,  chairs  and  sofas;  instead  of  the  chibouk  I  am 
offered  a  cigarette,  and  I  look  out  of  the  window,  and  in- 


85 

stead  of  the  slow-moving  camel  I  notice  a  tramway — a 
greater  change  I  could  hardly  expect  to  see."  A  very 
pleasant  interview  the  Judge  and  the  consul  had  with  the 
Pasha,  and  as  he  left,  the  Pasha  offered  him  an  escort  if 
he  wished  to  visit  any  of  the  surroundings  of  the  city,  or 
to  go  to  Ephesus,  there  being,  at  the  time,  r,umors  of 
brigands  in  the  neighborhood. 

When  the  Judge  visited  Athens  he  found  Rev.  and 
Mrs.  Hill  still  alive,  Mr.  Hill  being  over  ninety  and 
Mrs.  Hill  not  far  from  eighty  years  of  age.  When  a 
boy  the  Judge  had  escorted  Mrs.  Hill  in  a  Greek  vessel 
from  Smyrna  to  Athens,  leaving  Smyrna  about  the  20th 
of  December,  1831,  and  arriving  at  Athens  the  first  of 
January,  1832.  He  passed  the  following  winter  with  her 
and  attended  a  Greek  school.  Mr.  and  Mrs.  Hill  soon 
afterwards  established  at  Athens  a  school  for  young  ladies, 
which  became  a  very  successful  and  useful  seminary  of 
learning.  The  Judge  found  that  great  respect  was  enter- 
tained for  them  by  the  Greek  Government  and  people 
generally.  The  daughters  of  the  most  distinguished 
families  of  Greece  received  their  education  there.  Mrs. 
Hill  said  to  the  Judge  that  he  was  the  only  admirer  of 
hers  in  her  youth,  who  had  come  back  to  see  her  after  the 
lapse  of  half  a  century.  He  spent  a  few  days,  with  great 
pleasure  there,  passing  a  great  deal  of  time  in  conversa- 
tion with  his  old  and  dear  friends. 

Whilst  in  Athens  he  also  visited  Dr.  Schliemann  and 
listened  to  his  enthusiastic  accounts  of  his  explorations 
of  ancient  Troy.  He  wandered  among  the  ruins  of 
Athens,  stood  on  Mars  Hill  and  read  the  address  of  St. 
Paul,  and  felt  fully  the  force  of  his  language,  as  when  the 
Apostle,  looking  on  one  side,  saw  the  Acropolis  and  the 
magnificent  Parthenon,  and  the  statue  of  Minerva,  and 
before  him  the  temple  of  Theseus,  said:  "  God  that  made 
the  world  and  all  things  therein,  seeing  that  He  is  Lord 
of  heaven  and  earth,  dwelleth  not  in  temples  made  with 
hands."  (Acts,  17,  24.)  All  the  recollections  of  his  early 
years  came  back  with  great  force. 


86 

On  his  return  in  the  fall  from  his  trip  he  resumed  his 
regular  judicial  duties  with  additional  vigor  and  pleasure. 

His  course  on  the  bench  has  been  one  of  simple  dignity. 
No  disturbances  or  unmanly  disputes  have  occurred  dur- 
ing his  long  career.  Only  in  two  instances  has  he  been 
called  upon,  to  impose  any  punishment  for  disorderly  or 
contemptuous  proceedings  in  court.  One  was  in  the  case 
of  a  Frenchman  by  the  name  of  Moulin,  who  became  de- 
nunciatory and  offensive  in  his  remarks  to  the  judges  in 
open  court;  and  the  other  was  upon  Judge  Terry  and 
his  wife,  the  one  having  personally  insulted  the  Judge 
with  gross  imputations  upon  him,  and  the  other  having 
been  guilty  of  violent  proceedings  in  court.  The  circum- 
stances of  this  latter  case  require  further  notice  as  show- 
ing not  only  the  contempt  committed  by  them,  but  also 
the  subsequent  attempted  assassination  of  the  Judge  and 
the  proceedings  following  it.  I  take,  from  the  opinion  of 
Judge  Sawyer,  in  the  case  of  the  Petition  of  David  Neagle, 
a  statement  of  the  facts: 

"  On  the  3d  of  September,  1888,  certain  cases  were  pending  in 
the  Circuit  Court  of  the  United  States  for  the  Northern  District 
of  California,  between  Frederick  W.  Sharon,  as  executor,  vs. 
David  S.  Terry  and  Sarah  Althea  Terry,  his  wife,  and  between 
Francis  G.  Newlands,  as  trustee,  and  others  against  the  same  par- 
ties, on  demurrers  to  bills  to  revive  and  carry  into  execution  the 
final  decree  of  the  court  in  the  suit  of  William  Sharon  vs.  Sarah 
Althea  Hill,  and  were  decided  on  that  day.  That  suit  was  brought 
to  have  an  alleged  marriage  contract  between  the  par  ties  adjudged 
to  be  a  forgery,  and  obtain  its  surrender  and  cancellation.  The 
decree  rendered  adjudged  the  alleged  marriage  contract  to  be  a 
forgery,  and  ordered  it  to  be  surrendered  and  canceled.  The  de- 
cree was  rendered  after  the  death  of  William  Sharon,  and  was 
therefore  entered  as  of  the  day  when  the  case  was  submitted  to 
the  court.  By  reason  of  the  death  of  Sharon  it  was  necessary,  in 
order  to  execute  the  decree,  that  the  suit  should  be  revived.  Two 
bills  were  filed,  one  by  the  executor  of  the  estate  of  Sharon,  and 
the  other  a  bill  of  revivor  and  supplemental  by  Newlands  as 
trustee  for  that  purpose. 


87 

"  In  deciding  the  cases,  the  court  gave  an  elaborate  opinion 
upon  the  questions  involved,  and  whilst  it  was  being  read  certain 
disorderly  proceedings  took  place  for  which  the  defendants,  David 
S.  Terry  and  his  wife,  were  adjudged  guilty  of  contempt  and 
ordered  to  be  imprisoned.  The  following  is  an  accurate  state- 
ment of  those  proceedings,  slightly  condensed  from  the  opinion 
of  the  court  delivered  on  the  subsequent  application  of  David  S. 
Terry  to  have  the  order  of  commitment  revoked.  For  the  whole 
proceeding,  see  In  re  Terry,  36  Fed.  Rep.  419. 

"  Shortly  before  the  court  opened,  the  defendants  came  into  the 
court-room  and  took  their  seats  within  the  bar  at  the  table  next 
to  the  clerk's  desk,  and  almost  immediately  in  front  of  the  Judges, 
the  defendant,  David  S.  Terry,  being  at  the  time  armed  with  a 
bowie-knife  concealed  on  his  person,  and  the  defendant,  Sarah 
Althea,  his  wife,  carrying  in  her  hand  a  small  satchel  which  con- 
tained a  revolver  of  six  chambers,  five  of  which  were  loaded. 
The  court  at  the  time  was  held  by  the  Justice  of  the  Supreme 
Court  of  the  United  States  allotted  to  this  circuit,  who  was  pre- 
siding; the  United  States  Circuit  Judge  of  this  circuit;  and  the 
United  States  District  Judge  of  Nevada,  called  to  this  district  to 
assist  in  holding  the  Circuit  Court.  Almost  immediately  after 
the  opening  of  the  court,  the  Presiding  Justice  commenced  read- 
ing its  opinion  in  the  cases  mentioned,  but  had  not  read  more 
than  one-fourth  of  it  when  the  defendant,  Sarah  Althea  Terry, 
arose  from  her  seat  and  asked  him,  in  an  excited  manner,  whether 
he  was  going  to  order  her  to  give  up  the  marriage  contract  to  be 
canceled. 

"  The  Presiding  Justice  replied,  '  Be  seated,  madam.'  She 
repeated  the  question,  and  was  again  told  to  be  seated.  She 
then  cried  out,  in  a  violent  manner,  that  the  Justice  had  been 
bought,  and  wanted  to  know  the  price  he  held  himself  at ;  that 
he  had  got  Newlands'  money  for  his  decision,  and  everybody 
knew  it,  or  words  to  that  effect.  It  is  impossible  to  give  her  exact 
language.  The  Judges  and  parties  present  differed  as  to  the  pre- 
cise words  used,  but  all  concurred  as  to  their  being  of  an  exceed- 
ingly vituperative  and  insulting  character. 

"  The  Presiding  Justice  then  directed  the  Marshal  to  remove 
her  from  the  court-room.  She  immediately  exclaimed  that  she 
would  not  go  from  the  room,  and  that  no  one  could  take  her  from 
it,  or  words  to  that  effect.  The  Marshal  thereupon  proceeded  to- 


88 

wards  her  to  carry  out  the  order  for  her  removal  and  compel  her 
to  leave,  when  the  defendant,  David  S.  Terry,  rose  from  his  seat, 
evidently  under  great  excitement,  exclaiming,  among  other 
things,  'No  living  man  shall  touch  my  wife!'  or  words  of  that 
import,  and  dealt  the  Marshal  a  violent  blow  in  his  face.*  He 
then  unbuttoned  his  coat  and  thrust  his  hand  under  his  vest, 
where  his  bowie-knife  was  kept,  apparently  for  the  purpose  of 
drawing  it,  when  he  was  seized  by  persons  present,  his  hands  held 
from  drawing  his  weapon,  and  he  himself  forced  down  on  his 
back.  The  Marshal  then  removed  Mrs.  Terry  from  the  court- 
room. Soon  afterward  Mr.  Terry  was  allowed  to  rise,  and  was 
accompanied  by  officers  to  the  door  leading  to  the  corridor  on 
which  was  the  Marshal's  office.  As  he  was  about  leaving  the 
room,  or  immediately  after  stepping  out  of  it,  he  succeeded  in 
drawing  his  knife,  when  his  arms  were  seized  by  a  Deputy  Mar- 
shal and  others  present,  to  prevent  him  from  using  it,  and  they 
were  able  to  take  it  from  him  only  after  a  violent  struggle. 

"The  petitioner  Neagle  wrenched  the  knife  from  his  hand, 
whilst  four  other  persons  held  on  to  the  arms  and  body  of  Terry, 
one  of  whom  presented  a  pistol  to  his  head,  threatening  at  the 
same  time  to  shoot  him  if  he  did  not  give  up  the  knife.  To  these 
threats  Terry  paid  no  attention,  but  held  on  to  the  knife,  actually 
passing  it  during  the  struggle  from  one  hand  to  another. 

"Mr.  Cross,  a  prominent  attorney,  who  on  that  occasion  sat 
next  to  Mrs.  Terry,  a  litJe  to  her  left  and  rear,  testifies  that  just 
before  she  arose  to  interrupt  Justice  Field  she  nervously  worked 
at  the  clasp  of  a  small  satchel  about  nine  inches  long,  and  tried 
to  open  it;  and  not  succeeding,  in  consequence  of  her  excitement, 
she  hastily  sprang  to  her  feet  and  interrupted  the  Justice  as  here- 
inbefore stated.  Knowing  that  she  had  before  drawn  a  pistol 
from  a  similar  satchel  in  the  Master's  room,  he  concluded  at  this 
time  that  she  was  trying  to  get  her  pistol  out,  and  he  consequently 
held  himself  in  readiness  to  seize  her  arm  as  soon  as  it  should 
appear,  and  endeavor  to  prevent  its  use  until  he  could  get  assist- 
ance, his  right  arm  being  partially  disabled.  (See  Sharon  v.  Hill, 
11  Sawyer,  123.)  At  this  time  Mrs.  Terry  sat  directly  in  front  of 
Justice  Field  and  the  Circuit  Judge,  less  than  four  yards  from 
either.  A  loaded  revolver  was  afterwards  taken  from  tbis  satchel 

*  One  of  the  witnesses  stated  that  Terry  also  said,  "  Get  a  written  or- 
der from  the  court." 


89 

by  the  Marshal.  For  their  conduct  and  resistance  to  the  execu- 
tion of  the  order  of  the  Court,  the  defendants,  Sarah  Althea 
Terry  and  David  S.  Terry,  were  adjudged  guilty  of  contempt  and 
ordered  to  be  imprisoned,  the  former  for  thirty  days  and  the  latter 
for  six  months. 

"In  consequence  of  the  imprisonment  which  followed,  various 
threats  of  personal  violence  to  Justice  Field  and  the  Circuit 
Judge  were  made  by  Terry  and  his  wife.  Those  threats  were  that 
they  would  take  the  lives  of  both  Judges;  those  against  Justice 
Field  were  sometimes  that  they  would  take  his  life  directlv,  at 
other  times  that  they  would  subject  him  to  great  personal  in- 
dignities and  humiliations,  and  if  he  resented  it  they  would  kill 
him. 

"These  threats  were  not  made  in  ambiguous  terms,  but  openly 
and  repeatedly,  not  to  one  person,  but  to  many  persons,  until  they 
became  the  subject  of  conversation  throughout  the  State  and  of 
notice  in  the  public  journals.  Eeports  of  these  threats  through 
the  press  and  through  the  reports  of  the  United  States  Marshal 
and  United  States  Attorney  reached  Washington,  and  in  conse- 
quence of  them  the  Attorney-General  thought  proper  to  give 
instructions  to  the  Marshal  of  the  United  States  for  the  Northern 
District  of  California  to  take  measures  to  protect  the  persons 
of  those  judges  from  violence  at  the  hands  of  Terry  and  his  wife. 
On  the  return  of  Justice  Field  from  Washington  to  attend  his 
circuit  in  June  last,  [1889]  the  probability  of  an  attack  by  Judge 
Terry  upon  him  was  the  subject  of  conversation  throughout  the 
State,  and  of  notices  in  some  of  the  journals  in  the  city  of  San 
Francisco.  It  was  the  general  expectation  that  if  Judge  Terry 
met  Justice  Field  violence  would  be  attempted  upon  the  latter. 

"In  consequence  of  this  general  belief  and  expectation,  and  the 
fact  that  the  Attorney-General  of  the  United  States  had  given 
instructions  to  the  Marshal  to  see  that  the  persons  of  Justice  Field 
and  of  the  Circuit  Judge  should  be  protected  from  violence,  the 
Marshal  of  the  Northern  District  appointed  the  petitioner  in  this 
case,  David  Neagle,  to  accompany  Mr.  Justice  Field  whilst  en- 
gaged in  the  performance  of  his  duties  and  whilst  passing  from 
one  district  to  another  within  his  circuit,  so  as  to  guard  him  against 
the  threatened  attacks.  He  was  specially  commissioned  as  a 
deputy  by  Mr.  Franks,  whose  instructions  to  him  were  that  he 
should  protect  Justice  Field  at  all  hazards,  and,  knowing  the 
12 


90 

violent  and  desperate  character  of  Terry,  that  he  should  be  active 
and  alert,  and  be  fully  prepared  for  any  emergency,  but  not  to  be 
rash ;  and  in  case  any  violence  was  attempted  from  any  one,  to  call 
upon  the  assailant  to  stop,  and  to  inform  him  that  he  was  an  officer 
of  the  United  States. 

"Judge  Terry  was  a  man  of  great  size  and  strength,  who  had 
the  reputation  of  being  always  armed  with  a  bowie-knife,  in  the 
use  of  which  he  was  specially  skilled,  and  of  showing  great  readi- 
ness to  draw  and  use  it  upon  persons  towards  whom  he  entertained 
any  enmity  or  had  any  grievance,  real  or  fancied. 

"On  the  8th  of  August,  1889,  Justice  Field  left  San  Francisco 
for  Los  Angeles  in  order  to  hear  a  habeas  corpus  case  which  was 
returnable  before  him  at  that  city  on  the  10th  of  August,  and 
also  to  be  present  at  the  opening  of  the  court  on  the  12th.  He 
was  accompanied  by  Deputy  Marshal  Neagle,  the  petitioner.  Jus- 
tice Field  heard  the  habeas  corpus  case  on  the  10th  of  August. 
On  the  12th  of  August  he  opened  the  Circuit  Court,  Judge  Ross 
sitting  with  him,  and  he  delivered  on  the  latter  day  an  opinion  in 
an  important  land  case,  and  also  an  opinion  in  the  habeas  corpus 
case.  On  the  following  day  the  court  heard  an  application  for 
an  injunction  in  an  important  water  case  from  San  Diego  County. 
No  other  cases  being  ready  for  hearing  before  the  Circuit  Court, 
he  took  the  train  on  Tuesday,  the  13th,  at  1.30  o'clock  in  the 
afternoon,  for  San  Francisco,  where  he  was  expected  to  hear  a 
case  then  awaiting  his  arrival,  being  accompanied  on  his  return 
by  Deputy  Marshal  Neagle.  On  the  morning  of  the  14th,  be- 
tween the  hours  of  seven  and  eight,  the  train  arrived  at  Lathrop, 
in  San  Joaquin  County,  which  is  in  the  Northern  District  of  Cali- 
fornia, a  station  at  which  the  train  stopped  for  breakfast.  Justice 
Field  and  the  Deputy  Marshal  at  once  entered  the  dining-room 
there  to  take  their  breakfast,  and  took  their  seats  at  the  third 
table  in  the  middle  row  of  tables.  Justice  Field  seated  himself  at 
the  extreme  end,  on  the  side  looking  toward  the  door.  The 
Deputy  Marshal  took  the,  next  seat  on  the  left  of  the  Justice. 
What  subsequently  occurred  is  thus  stated  in  the  testimony  of 
Justice  Field : 

"A  few  minutes  afterwards  Judge  Terry  and  his  wife  came  in. 
When  Mrs.  Terry  saw  me,  which  she  did  directly  she  got  diagon- 
ally opposite  me,  she  wheeled  around  suddenly  and  went  out  in 
great  haste.  I  afterwards  understood  that  she  went  for  her  satchel. 


91 

Judge  Terry  walked  past,  opposite  to  me,  and  took  his  seat  at  the 
second  table  below.  The  only  remark  I  made  to  Mr.  Neagle  was, 
'There  is  Judge  Terry  and  his  wife.'  He  remarked,  'I  see  him.' 
Not  another  word  was  said.  I  commenced  eating  my  breakfast. 
I  saw  Judge  Terry  take  his  seat.  In  a  moment  or  two  afterwards 
I  looked  round  and  saw  Judge  Terry  rise  from  his  seat.  I  sup- 
posed at  the  time  he  was  going  out  to  meet  his  wife,  as  she  had 
not  returned,  so  I  went  on  with  my  breakfast.  It  seems,  however, 
that  he  came  round  back  of  me — I  did  not  see  him — and 
struck  me  a  violent  blow  in  the  face,  followed  instantaneously  by 
another  blow.  Coming  so  immediately  together,  the  two  blows 
seemed  like  one  assault.  I  heard 'Stop!  stop!'  cried  by  Neagle. 
Of  course  I  was  for  a  moment  dazed  by  the  blows.  I  turned  my 
head  round  and  saw  that  great  form  of  Terry,  with  his  arm 
raised  and  his  fists  clenched  to  strike  me.  I  felt  that  a  terrific 
blow  was  coming,  and  his  arm  was  descending  in  a  curved  way,  as 
though  to  strike  the  side  of  my  temple,  when  I  heard  Neagle  cry 
out, 'Stop!  stop!  I  am  an  officer !'  Instantly  two  shots  followed. 
I  can  only  explain  the  second  shot  from  the  fact  that  he  did  not 
fall  instantly.  I  did  not  get  up  from  my  seat,  although  it  is 
proper  for  me  to  say  that  a  friend  of  mine  thinks  that  I  did ;  but 
I  did  not.  I  looked  around  and  saw  Terry  on  the  floor.  I  looked 
at  him  and  saw  that  peculiar  movement  of  the  eyes  that  indicates 
the  presence  of  death.  Of  course  it  was  a  great  shock  to  me.  It 
is  impossible  for  any  one  to  see  a  man  in  the  full  vigor  of  life,  with 
all  those  faculties  that  constitute  life,  instantly  extinguished,  with- 
being  affected,  and  I  was.  I  looked  at  him  for  a  moment,  then  rose 
from  my  seat,  went  around  and  looked  at  him  again,  and  passed 
on.  Great  excitement  followed.  A  gentleman  came  to  me  whom 
I  did  not  know,  but  I  think  it  was  Mr.  Lidgerwood,  who  has  been 
examined  as  a  witness  in  this  case,  and  said  :  '  What  is  this  ? '  I 
said:  'I  am  a  Justice  of  the  Supreme  Court  of  the  United  States. 
My  name  is  Judge  Field.  Judge  Terry  threatened  my  life  and 
attacked  me,  and  the  Deputy  Marshal  has  shot  him.'  The  Deputy 
Marshal  was  perfectly  cool  and  collected,  and  stated :  '  I  am  a 
Deputy  Marshal,  and  I  have  shot  him  to  protect  the  life  of  Judge 
Field.'  I  cannot  give  you  the  exact  words,  but  I  give  them  to 
you  as  near  as  I  can  remember  them.  A  few  moments  afterwards 
the  Deputy  Marshal  said  to  me:  'Judge,  I  think  you  had  better 
go  to  the  car.'  I  said,  '  Very  well.'  Then  this  gentleman,  Mr. 


92 

Lidgerwoed,  said  :  "  I  think  you  had  better.'  And  with  the  two 
I  went  to  the  car.  I  asked  Mr.  Lidgervvood  to  go  back  and  get 
my  hat  and  cane,  which  he  did.  The  Marshal  went  with  me, 
remained  some  time,  and  then  left  his  seat  in  the  car,  and,  as  I 
thought,  went  back  to  the  dining-room.  (This  is,  however,  I  am 
told,  a  mistake,  and  that  he  only  went  to  the  end  of  the  car.) 
He  returned,  and  either  he  or  some  one  else  stated  that  there  was 
great  excitement;  that  Mrs.  Terry  was  calling  for  some  violent 
proceedings.  I  must  say  here  that,  dreadful  as  it  is  to  take  life, 
it  was  only  a  question  of- seconds  whether  my  life  or  Judge  Terry's 
life  should  be  taken.  I  am  firmly  convinced  that  had  the  Marshal 
delayed  two  seconds  both  he  and  myself  would  have  been  the  vic- 
tims of  Terry." 

"  In  answer  to  a  question  whether  he  had  a  pistol  or  other 
weapon  on  the  occasion  of  the  homicide,  Justice  Field  replied : 
*  No,  sir.  I  have  never  had  on  my  person  or  used  a  weapon 
since  I  went  on  the  bench  of  the  Supreme  Court  of  the  State,  on 
October  13,  1857,  except  once.  That  was  on  an  occasion  when  I 
crossed  the  Sierra  Nevada  Mountains  in  1862.  With  that  ex- 
ception, I  have  not  had  on  my  person  or  used  a  pistol  or  other 
deadly  weapon.' 

"Mr.  Neagle  in  his  testimony  stated  that  before  the  train  ar- 
rived at  Fresno,  he  got  up  and  went  out  on  the  platform,  leaving 
the  train,  and  there  saw  Judge  Terry  and  his  wife  get  on  the 
cars ;  that  when  the  train  arrived  at  Merced  he  spoke  to  the  con- 
ductor, Woodward,  and  informed  him  that  he  was  a  Deputy 
United  States  Marshal ;  that  Judge  Field  was  on  the  train,  and 
also  Judge  Terry  and  his  wife,  and  that  he  was  apprehensive  that 
when  the  train  arrived  at  Lathrop  there  would  be  trouble  between 
those  parties,  and  inquired  whether  there  was  any  officer  at  that 
station,  and. was  informed  in  reply  that  there  was  a  constable 
there ;  that  he  then  requested  the  conductor  to  send  word  to  the 
officer  to  be  at  Lathrop  on  the  arrival  of  the  train,  and  that  he 
also  applied  to  other  parties  to  induce  them  to  endeavor  to  secure 
assistance  for  him  at  that  place  in  case  it  should  be  needed.  The 
Deputy  Marshal  further  stated  that  when  the  train  arrived  at 
Lathrop,  Justice  Field  went  into  the  dining-room,  he  accompany- 
ing the  Justice  ;  that  they  took  seats  at  a  table ;  that  shortly  after 
they  were  seated,  Judge  Terry  and  his  wife  entered  the  dining- 
room,  his  wife  following  him  several  feet  in  the  rear;  that  when 


93 

the  wife  reached  a  point  nearly  opposite  Justice  Field,  she  turned 
around  and  went  out  rapidly  from  the  room,  and,  as  appeared 
from  what  afterward  followed,  she  went  to  the  car  to  get  her  satchel. 
When  she  returned  from  the  car,  the  satchel  was  taken  from  her, 
and  it  was  found  to  contain  a  pistol — revolver — containing  six 
chambers,  all  of  which  were  loaded  with  ball.  This  pistol  lay  on 
the  top  of  the  other  articles  in  the  satchel.  The  witness  further 
stated  that  Judge  Terry  passed  down  opposite  Justice  Field, 
to  a  table  below  where  they  were  sitting ;  that  in  a  few 
minutes,  whilst  Justice  Field  was  eating,  Judge  Terry 
rose  from  his  seat,  went  around  behind  him — the  Justice 
not  seeing  him  at  the  time — and  struck  him  two  blows, 
one  on  the  side  and  the  other  on  the  back  of  the  head; 
that  the  second  blow  followed  the  other  immediately;  that 
one  was  given  with  the  right  hand  and  the  other  with  the 
left;  that  Judge  Terry  then  drew  back  his  hand,  with  his  fist 
clenched,  apparently  to  give  the  Justice  a  violent  blow  on  the  side 
of  his  head,  when  he,  Neagle,  sprang  to  his  feet,  calling  out  to 
TeFry, 'Stop!  stop!  I  am  an  officer!'  that  Terry  bore  at  the  time 
on  his  face  an  expression  of  intense  hate  and  passion,  the  most 
malignant  the  witness  had  ever  seen  in  his  life,  and  that  he  had 
seen  a  great  many  men  in  his  time  in  such  situations,  and  that  the 
expression  meant  life  or  death  for  one  or  the  other;  that  as  he  cried 
out  those  words,  'Stop !  stop!  I  am  an  officer! '  he  jumped  between 
Terry  and  Justice  Field,  and  at  that  moment  Judge  Terry  ap- 
peared to  recognize  him,  and  instantly,  with  a  growl,  moved  his 
right  hand  to  his  left  breast,  to  the  position  where  he  usually 
carried  his  bowie-knife;  that,  as  his  hand  got  there,  the  Deputy 
Marshal  raised  his  pistol  and  shot  twice  in  rapid  succession,  killing 
him  almost  instantly.  He  further  stated  that  the  position  of  Judge 
Field  was  such — his  legs  being  at  the  time  under  the  table,  and 
he  sitting — that  it  would  have  been  impossible  for  him  to  have 
done  anything  even  if  had  been  armed,  and  that  Judge  Terry  had 
a  verv  furious  expression,  which  was  characterized  by  the  witness 
as  that  of  an  infuriated  giant.  He  also  added  that  his  cry  to  him 
to  stop  was  so  loud  that  it  could  be  heard  throughout  the  whole 
room,  and  that  he  believed  that  a  delay  in  shooting  of  two  seconds 
would  have  been  fatal  both  to  himself  and  Justice  Field. 

"The  facts  thus  stated  in  the  testimony  of  Justice  Field  and 
the  petitioner  were  corroborated  by  the  testimony  of  all  the  wit- 


94 

nesses  to  the  transaction.  The  petitioner  soon  afterwards  accom- 
panied Justice  Field  to  the  car,  and  whilst  in  the  car  he  was 
arrested  by  a  constable,  and  at  the  station  below  Lathrop  was 
taken  by  that  officer  from  the  car  to  Stockton,  the  county  seat  of 
San  Joaquin  County,  where  he  was  lodged  in  the  county  jail. 
Mr.  Justice  Field  was  obliged  to  continue  on  to  San  Francisco 
without  the  protection  of  any  officer.  On  the  evening  of  that  day 
Mrs.  Terry,  who  did  not  see  the  transaction,  but  was  at  the  time 
outside  of  the  dining-room,  made  an  affidavit  that  the  killing  of 
Judge  Terry  was  murder,  and  charged  Justice  Field  and  Deputy 
Marshal  Neagle  with  the  commission  of  the  crime.  Upon  this 
affidavit,  a  warrant  was  issued  by  a  Justice  of  the  Peace  at  Stock- 
ton against  Neagle  and  also  against  Justice  Field.  Subsequently, 
after  the  arrest  of  Justice  Field,  and  after  his  being  released  by 
the  United  States  Circuit  Court  on  habeas  corpus  upon  his  own 
recognizance,  the  proceeding  against  him  before  the  Justice  of  the 
Peace  was  dismissed,  the  Governor  of  the  State  having  written  a 
letter  to  the  Attorney-General  of  the  State,  declaring  that  the 
proceeding,  if  persisted  in,  would  be  a  burning  disgrace  to  the 
State,  and  the  Attorney-General  having  advised  the  District 
Attorney  of  San  Joaquin  County  to  dismiss  it.  There  was  no 
other  testimony  whatever  before  the  Justice  of  the  Peace  except 
the  affidavit  of  Sarah  Althea  Terry  upon  which  the  warrant  was 
issued. 

"In  the  suit  of 'William  Sharon  against  Mrs.  Terry  in  the  Cir- 
cuit Court  of  the  United  States,  it  was  adjudged  that  the  alleged 
marriage  contract  between  her  and  Sharon,  produced  by  her,  was 
a  forgery,  and  it  was  held  that  she  had  attempted  to  support  it  by 
perjury  and  subornation  of  perjury.  She  had  also  made  threats 
during  the  past  year,  and  up  to  the  time  of  the  shooting  of  Judge 
Terry,  that  she  would  kill  the  Circuit  Judge  and  Justice  Field, 
and  she  repeated  that  threat  up  to  the  time  she  made  her  affidavit 
for  the  arrest  of  Justice  Field  and  Neagle ;  and  that  she  had 
made  such  threats  was  a  notorious  fact  in  Stockton  and  through- 
out the  State. 

"A  petition  was  accordingly  presented,  on  behalf  of  Neagle,  to 
the  Circuit  Court  of  the  United  States  for  a  writ  of  habeas  corpus 
in  this  case,  alleging,  among  other  things,  that  he  was  arrested 
and  confined  in  prison  for  an  act  done  by  him  in  the  performance 
of  his  duty,  namely,  the  protection  of  Mr.  Justice  Field,  and  taken 


95 

away  from  the  further  protection  which  he  was  ordered  to  give 
to  him.  The  writ  was  issued,  and  upon  its  return  the  Sheriff  of 
San  Joaquin  County  produced  a  copy  of  the  warrant  issued  by 
the  Justice  of  the  Peace  of  that  county,  and  of  the  affidavit  of 
Sarah  Althea  Terry  upon  which  it  was  issued.  A  traverse  to 
that  return  was  then  filed  in  this  case,  presenting  various  grounds 
why  the  petitioner  should  not  be  held,  the  most  important  of 
which  were,  that  an  officer  of  the  United  States,  specially  charged 
with  a  particular  duty,  that  of  protecting  one  of  the  Justices  of 
the  Supreme  Court  of  the  United  States  whilst  engaged  in  the 
performance  of  his  duty,  could  not,  for  an  act  constituting  the 
very  performance  of  that  duty,  be  taken  from  the  further  dis- 
charge of  his  duty  and  imprisoned  by  the  State  authorities,  and 
that  when  an  officer  of  the  United  States  in  the  discharge  of  his 
duties  is  charged  with  an  offense  consisting  in  the  performance  of 
those  duties,  and  is  sought  to  be  arrested,  and  taken  from  the 
further  performance  of  them,  he  can  be  brought  before  the  tri- 
bunals of  the  nation  of  which  he  is  an  officer,  and  the  fact  then 
inquired  into.  The  Attorney-General  of  the  State  appeared  with 
the  District  Attorney  of  San  Joaquin  County,  and  contended  that 
the  offense  of  which  the  petitioner  is  charged  could  only  be  in- 
quired into  before  the  tribunals  of  the  State. 

"The  question  of  the  jurisdiction  of  the  national  tribunal  to 
interfere  in  the  matter  was  elaborately  argued  by  counsel,  the 
Attorney-General  of  the  State  and  Mr.  Langhorne  appearing  with 
the  District  Attorney  of  San  Joaquin  County  on  behalf  of  the 
State,  and  Mr.  Carey,  United  States  Attorney,  and  Messrs.  Herrin, 
Mesick,  and  Wilson  appearing  on  behalf  of  the  petitioner.  The 
latter  did  not  pretend  that  any  person  in  this  State,  high  or  low, 
who  committed  a  crime,  might  not  be  tried  by  the  local  authori- 
ties if  it  were  a  crime  against  the  State,  but  that  when  in  the  per- 
formance of  his  duties  that  alleged  crime  consisted  in  an  act  which 
is  deemed  a  part  of  the  performance  of  a  duty  devolved  upon  him 
by  the  laws  of  the  United  States,  it  was  within  the  competency  of 
the  national  tribunals  to  determine  in  the  first  instance  whether 
that  act  was  a  duty  devolving  upon  him,  and  if  it  was  a  duty  de- 
volving upon  him,  the  officer  had  committed  no  offense  against 
the  State,  and  was  entitled  to  be  discharged." 

The  court  held  that  it  was  within  the  competency  of 
the  President  and  the  heads  of  the  executive  depart- 


96 

merits  representing  him  to  direct  that  proceedings  be 
taken  for  the  protection  of  officers  of  the  Government 
whilst  in  the  discharge  of  their  duties;  that  it  was  espe- 
cially appropriate  that  such  protection  should  be  given 
to  Justices  of  the  Supreme  Court  of  the  United  States 
whilst  engaged  in  their  respective  circuits  in  the  perform- 
ance of  their  duties  and  in  proceeding  to  and  from  them 
for  that  purpose;  that  the  Attorney-General,  representing 
the  President,  was  fully  justified  in  giving  orders  to  the 
Marshal  of  the  California  District  to  appoint  a  deputy  to 
look  especially  to  the  protection  of  Justices  Field  and 
Sawyer  from  violence  threatened  by  Terry  and  his  wife; 
and  that  the  Deputy  Marshal,  acting  under  instructions 
for  their  protection,  was  justified  in  any  measures  that 
were  necessary  for  that  purpose,  even  to  taking  the  life  of 
the  assailant.  It  also  held  that  the  courts  of  the  United 
States  had  jurisdiction  to  protect  an  officer  of  the  United 
States  from  arrest  by  State  authorities  for  the  perform- 
ance of  any  act  imposed  upon  him  by  the  Constitution 
and  laws  of  the  United  States.  It  therefore  discharged 
V  Neagle  from  arrest. 

The  case  and  all  the  proceedings  leading  to  it;  the  at- 
tempted assassination  of  Judge  Field  by  Terry;  the 
shooting  of  the  latter  by  the  Deputy  Marshal  assigned  for 
the  protection  of  Judge  Field,  excited  widespread  interest 
throughout  the  United  States,  and  was  the  subject  of  dis- 
cussion in  all  the  leading  periodicals  of  the  country. 
With  rare  exceptions  the  conduct  of  the  officers,  of  the 
Government  in  giving  him  protection,  and  the  action  of 
the  Deputy  Marshal  in  shooting  down  his  assailant,  were 
fully  justified.  There  were  some,  not  many,  who  insisted, 
in  their  extreme  devotion  to  States'  rights,  that  the  States 
were  to  determine  whether  the  Deputy  Marshal  in  pro- 
tecting Judge  Field  was  justified  in  what  he  did.  In  other 
words/they  insisted  that  whether  an  officer  of  the  United 
States  could  be  protected  in  the  discharge  of  his  duties, 
and  the  extent  of  that  protection,  were  not  to  be  deter- 


97 

mined  by  the  tribunals  of  the  sovereignty  under  which 
he  acted,  but  by  the  tribunals  and  officers  of  another 
sovereignty. 

From  the  judgment  discharging  Neagle  an  appeal  was 
taken  to  the  Supreme  Court  of  the  United  States,  and  by 
it  that  judgment  was  affirmed.  The  doctrine  declared  in 
these  decisions  was  of  a  most  important  character,  for 
weak,  indeed,  would  be  that  government  whose  officers 
could  not  be  protected  by  its  tribunals,  but  who  would 
have  to  seek  that  protection  in  another  and  different  sov- 
ereignty. 

While  the  leading  periodicals  throughout  the  country 
spoke  approvingly  of  the  action  of  the  Government,  they 
commended  in  strong  terms  the  conduct  and  bearing  of 
Judge  Field  during  the  trying  proceedings.  A  citation 
from  one  or  two  of  these  periodicals  will  be  sufficient  to 
indicate  the  general  spirit  of  all. 

The  New  Orleans  Times-Democrat,  in  one  of  its  issues  at 
this  period,  used  the  following  language: 

"  If  Judge  Field  of  the  Supreme  Court,  one  of  the  nine  highest 
judges  under  our  republican  government,  in  traveling  recently 
over  his  circuit  in  California,  had  been  left  at  the  mercy  of  the 
violent  man  who  had  repeatedly  threatened  his  life,  who  had 
proved  himself  ready  with  the  deadly  knife  or  revolver,  it  would 
have  been  a  disgrace  to  American  civilization  ;  it  would  have 
been  a  stigma  and  stain  upon  American  manhood ;  it  would  have 
shown  that  the  spirit  of  American  liberty,  which  exalts  and  pays 
reverence  to  our  judiciary,  had  been  replaced  by  a  public  apathy 
that  marked  the  beginning  of  the  decline  of  patriotism.  Judge 
Field  recognized  this  when,  on  being  advised  to  arm  him- 
self in  case  his  life  was  endangered,  he  uttered  the  noble  words  : 
'  No,  sir;  I  do  not  and  will  not  carry  arms,  for  when  it  is  known 
that  the  judges  of  the  courts  are  compelled  to  arm  themselves 
against  assaults  offered  in  consequence  of  their  judicial  action  it 
will  be  time  to  dissolve  the  courts,  consider  the  government  a 
failure,  and  let  society  lapse  into  barbarism.'  That  ringing 
sentence  has  gone  to  the  remotest  corner  of  the  land,  and  every- 
where it  has  gone  it  should  fire  the  American  heart  with  a  proud 
resolve  to  protect  forever  the  sanctity  of  our  judiciary." 
13 


98 

The  New  York  Herald,  in  its  issue  of  August  19,  1889, 
said: 

"  The  sensation  of  the  past  week  is  a  lesson  in  republicanism 
and  aeulogium  on  the  majesty  of  the  law. 

"  It  was  not  a  personal  controversy  between  Stephen  J.  Field 
and  David  S.  Terry.  It  was  a  conflict  between  law  and  lawless- 
ness— between  a  judicial  officer  who  represented  the  law  and  a 
man  who  sought  to  take  it  into  his  own  hands.  One  embodied  the 
peaceful  power  of  the  nation,  the  will  of  the  people ;  the  other 
defied  that  power  and  appealed  to  the  dagger 

"Justice  Field's  whole  course  shows  a  conception  of  judicial 
duty  that  lends  grandeur  to  a  republican  judiciary.  It  is  an 
inspiring  example  to  the  citizens  and  especially  to  the  judges  of 
the  country.  He  was  reminded  of  the  danger  of  returning  to 
California  while  Judge  Terry  and  his  wife  were  at  large.  His 
firm  answer  was  that  it  was  his  duty  to  go  and  he  would  go.  He 
was  then  advised  to  arm  himself  for  self-defense.  His  reply  em- 
bodies a  nobility  that  should  make  it  historic:  '  When  it  comes 
to  such  a  pass  in  this  country  that  judges  of  the  courts  find  it 
necessary  to  go  armed  it  will  be  time  to  close  the  courts  them- 
selves.' 

"  This  sentiment  was  not  born  of  any  insensibility  to  danger, 
Justice  Field  fully  realized  the  peril  himself.  But  above  all  feel- 
ing of  personal  concern  arose  a  lofty  sense  of  the  duty  imposed  upon 
a  justice  of  the  nation's  highest  court.  The  officer  is  a  representa- 
tive of  the  law — a  minister  of  peace.  He  should  show  by  his 
example  that  the  law  is  supreme;  that  all  must  bow  to  its  author- 
ity; that  all  lawlessness  must  yield  to  it.  When  judges  who 
represent  the  law  resort  to  violence  even  in  self-defense,  the  pistol 
instead  of  the  court  becomes  the  arbiter  of  controversies  and  the 
authority  of  the  government  gives  way  to  the  power  of  the  mob. 

"Rather  than  set  a  precedent  that  might  tend  to  such  a  result, 
that  would  shake  popular  confidence  in  the  judiciary,  that  would 
lend  any  encouragement  to  violence,  a  judge,  as  Justice  Field 
evidently  felt,  may  well  risk  his  own  life  for  the  welfare  of  the 
commonwealth.  He  did  not  even  favor  the  proposition  that  a 
marshal  be  detailed  to  guard  him. 

"  The  course  of  the  venerable  Justice  is  an  example  to  all  who 
would  have  the  law  respected.  It  is  also  a  lesson  to  all  who 
would  take  the  law  into  their  own  hands. 


99 

"  Not  less  exemplary  was  his  recognition  of  the  supremacy  of 
the  law  when  the  Sheriff  of  San  Joaquin  appeared  before  him 
with  a  warrant  of  arrest  on  the  grave  charge  of  murder.  The 
warrant  was  an  outrage,  but  it  was  the  duty  of  the  officer  to  serve 
it,  even  on  a  Justice  of  the  United  States  Supreme  Court.  When 
the  Sheriff  hesitated  and  began  to  apologize  before  discharging 
his  painful  duty,  Justice  Field  promptly  spoke  out:  'Officer,  pro- 
ceed with  your  duty.  I  am  ready,  and  an  officer  should  always 
do  his  duty.'  These  are  traits  of  judicial  heroism  worthy  the 
admiration  of  the  world." 

The  Argonaut,  a  leading  paper  of  San  Francisco,  not  a 
political,  but  a  literary  paper,  and  edited  with  great  abil- 
ity, in  its  issue  of  August£6,  1889,  used  the  following  lan- 
guage : 

"The  course  of  Judge  Field  throughout  this  troublesome  busi- 
ness has  been  in  the  highest  degree  creditable  to  him.  He  has 
acted  with  dignity  and  courage,  and  his  conduct  has  been  charac- 
terized by  most  excellent  taste.  His  answer,  when  requested  to 
go  armed  against  the  assault  of  Terry,  is  worthy  of  preservation. 
.  .  .  .  And  now  that  his  assailant  has  been  arrested  in  his 
career  by  death,  all  honest  men  who  respect  the  law  will  breathe 
more  freely.  Judge  Terry  had  gained  a  most  questionable  repu- 
tation, not  for  courage  in  the  right  direction ;  not  for  generosity 
which  overlooked,  or  forgave,  or  forget  offenses  against  himself 
or  his  interests.  He  never  conceded  the  right  to  any  man  to  hold 
an  opinion  in  opposition  to  his  prejudices,  or  cross  the  path  of  his 
passion  with  impunity.  He  could  with  vulgar  whisper  insult  the 
judge  who  rendered  an  opinion  adverse  to  his  client,  and  with 
profane  language  insult  the  attorney  who  had  the  misfortune  to 
be  retained  by  a  man  whose  cause  he  did  not  champion.  He  had 
become  a  terror  to  society  and  a  walking  menace  to  the  social 
circle  in  which  he  revolved.  His  death  was  a  necessity,  and, 
except  here  and  there  a  friend  of  blunted  moral  instincts,  there  will 
be  found  but  few  to  mourn  his  death,  or  criticise  the  manner  of 
his  taking  off.  To  say  that  Marshal  Neagle  should  have  acted  in 
any  other  manner  than  he  did  means  that  he  was  to  have  left 
Justice  Field  in  the  claws  of  a  tiger,  and  at  the  mercy  of  an  in- 
furiated, angry  monster,  who  had  never  shown  mercy  or  generosity 
to  an  enemy  in  his  power 


100 

"Judge  Field  has  survived  the  unhappy  conflict  which  carried 
Judge  Terry  to  his  grave.  He  is  more  highly  honored  now  than 
when  this  quarrel  was  thrust  upon  him ;  he  has  lost  no  friends ;  he 
has  made  thousands  of  new  ones,  who  honor  him  for  protecting 
with  his  life  the  honor  of  the  American  bench,  the  dignity  of  the 
American  law,  and  the  credit  of  the  American  name.  In  the 
home  where  Judge  Terry  lived  he  went  to  the  grave  almost  un- 
attended by  the  friends  of  his  social  surroundings,  no  clergyman 
consenting  to  read  the  service  at  his  burial.  The  Supreme  Court 
over  which  he  had  presided  as  Chief  Justice  refused  to  adjourn 
in  honor  of  his  death,  the  press  and  public  opinion,  for  a  wonder, 
in  accord  over  the  manner  of  his  taking  off." 

Indeed,  the  public  opinion  of  the  country,  as  shown  by 
the  press  and  declarations  of  prominent  individuals,  was 
substantially  one  in  its  approval  of  the  action  of  the 
Government,  the  conduct  of  Neagle,  and  the  bearing  of 
Justice  Field. 

At  the  time  of  the  conquest  of  California  by  the  forces 
of  the  United  States,  on  the  7th  of  July,  1846,  there  was 
a  Mexican  pueblo  at  the  site  of  the  present  city  of  San 
Francisco.  The  term  "pueblo"  means  people,  or  popula- 
tion, but  is  used  very  much  in  the  sense  of  the  English  word 
"town."  It  is  sometimes  applied  to  a  collection  of  indi- 
viduals residing  in  a  particular  place;  to  settlements  or 
villages  as  well  as  to  a  regularly  organized  municipality. 
The  pueblo  of  San  Francisco  was  a  small  settlement,  but 
of  sufficient  importance,  as  early  as  1835,  to  have  an 
ayunlamienio  composed  of  alcaldes  and  other  officers, 
and  had  continued  under  their  government  for  several 
years.  At  the  time  of  the  conquest,  and  for  some  time 
afterwards,  it  was  under  'the  government  of  justices  of  the 
peace  or  alcaldes.  By  the  general  law  of  Mexico,  which 
was  in  force  at  that  time,  pueblos  or  towns  when  once 
recognized  by  public  authority  became  entitled,  for  their 
benefit,  and  for  the  benefit  of  their  inhabitants,  to  the  use 
of  the  land  embracing  the  site  of  the  pueblos  or  towns, 
and  adjoining  territory,  within  the  limits  of  four  square 
leagues,  which  were  to  be  measured  by  the  officer  of  the 


101 

government.  Under  these  laws  the  pueblo  of  San  Fran- 
cisco asserted  a  claim  to  four  square  leagues  to  be 
measured  off  from  the  northern  portion  of  the  peninsula 
upon  which  the  present  city  is  situated.  When  San 
Francisco  was  occupied  by  our  forces  citizens  of  the  United 
States  were  appointed  by  the  military  and  naval  com- 
manders to  act  as  alcades  in  place  of  the  Mexican  officers. 
These  alcades  were  called  upon  by  emigrants  in  great 
numbers  for  building  lots,  and  grants  to  them  were  made 
almost  as  fast  as  requested.  Many  emigrants  arriving 
subsequently  denied  the  authority  of  the  Mexican  officers 
to  make  grants  of  lands,  and  claiming  that  the  land  within 
the  pueblo  was  public  property,  they  settled  upon  it  where- 
ever  they  found  it  unoccupied.  In '  April,  1850,  after 
the  organization  of  the  State  government,  San  Francisco 
was  incorporated  as  a  city  by  the  Legislature.  She  at 
once  made  claim  to  the  lands  of  the  pueblo  as  its  suc- 
cessor, and  when  Congress  had  established  a  Board  of 
Land  Commissioners  to  settle  private  land  claims,  she 
presented  her  claim  for  confirmation  to  the  board.  In 
December,  1854,  the  board  confirmed  the  claim  for  a 
portion  of  the  four  square  leagues.  Not  satisfied  with 
the  limitation  of  her  claim,  the  city  appealed  from  the 
decree  of  the  commissioners  to  the  District  Court  of  the 
United  States.  The  Government  also  appealed,  but  sub- 
sequently withdrew  its  appeal.  The  case  remained  in 
the  District  Court  of  the  United  States  undetermined 
until  September,  1864,  a  period  of  nearly  ten  years,  when 
under  the  authority  of  an  act  of  Congress  that  court  trans- 
ferred the  case  to  the  Circuit  Court  of  the  United  States, 
where  it  was  decided  in  the  following  October.  The  decree 
was  afterwards  somewhat  modified,  and  as  finally  settled 
was  entered  May  18,  1865,  confirming  the  claim  of  the  city 
to  a  tract  of  land  embracing  so  much  of  the  upper  portion 
of  the  peninsula  upon  which  the  city  is  situated  above 
the  ordinary  high-water  mark  of  1846  as  would  contain 
an  area  of  four  square  leagues,  the  tract  being  bounded 


102 

on  the  north  and  east  by  the  Bay  of  San  Francisco,  on 
the  west  by  the  Pacific  Ocean,  on  the  south  by  a  due  east 
and  west  line  drawn  so  as  to  include  the  area  designated, 
subject  to  certain  deductions  which  are  unnecessary  to 
mention.  This  statement  is  taken  from  the  decision 
of  the  Supreme  Court  of  the  United  States  in  Trenouth 
v.  San  Francisco,  (100  U.  S.  Reports,  p.  251.)  The  land 
when  confirmed  was  to  be  held  in  trust  for  the  benefit  of 
lot  holders,  under  grants  from  the  pueblo,  town,  or  city, 
or  other  competent  authority,  and  as  to  any  residue  in 
trust  for  the  use  and  benefit  of  the  inhabitants  of  the 
city.  In  April,  1851,  the  old  charter  of  the  city  was  re- 
pealed, and  a  new  charter  granted.  The  limits  of  the 
new  charter  covered  two  miles  square.  Pending  the  ap- 
peal of  the  pueblo  claim  in  the  District  Court,  the  city 
passed  an  ordinance  known  in  its  history  as  the  Van  Ness 
Ordinance,  the  object  of  which  was  to  quiet  the  title  of 
persons  owning  land  in  the  city.  It  relinquished  all 
right  and  claim  of  the  city  to  lands  within  the  corporate 
limits  as  defined  by  the  charter  of  1851,  with  certain  ex- 
ceptions, to  parties  in  actual  possession  thereof.  There 
thus  arose  some  conflict  between  parties  who  claimed 
under  the  pueblo  title  and  those  who  claimed  under  the 
grant  of  the  city  by  the  Van  Ness  ordinance. 

In  October  following,  1865,  the  Judge  proceeded  as 
usual  to  Washington  to  attend  the  then  approaching  term 
of  the  Supreme  Court  of  the  United  States,  and  thought 
no  more  of  the  decision  in  the  Pueblo  case  until  his  at- 
tention was  drawn  to  it  by  a  most  extraordinary  circum- 
stance. Just  before  leaving  San  Francisco  Mr.  Rulofson, 
a  photographer  of  note,  requested  the  Judge  to  sit  for  a 
photograph,  expressing  a  desire  to  add  it  to  his  gallery. 
The  Judge  consented,  and  a  photograph  of  a  large  size 
was  taken.  As  he  was  leaving  the  rooms  of  the  photo- 
grapher the  latter  observed  that  he  intended  to  make 
some  pictures  of  a  small  size  from  it,  and  would  send  the 
Judge  a  few  copies.  On  the  morning  of  the  13th  of  Jan- 


103 


uary  following,  1866,  at  Washington,  Delos  Lake,  a  lawyer 
of  distinction  in  California,  at  one  time  a  District  Judge 
of  the  State  and  then  District  Attorney  of  the  United 
States,  joined  the  Judge,  informing  him  as  he  did  so  that 
the  California  steamer  had  arrived  at  New  York,  and  that 
he  hoped  the  Judge  had  received  some  letters  for  him,  as 
he  had  directed  his  letters  to  be  forwarded  to  the  Judge's 
care.  The  Judge  replied  that  when  he  left  his  room  his 
messenger  had  not  brought  his  mail,  but  if  Mr.  Lake 
would  accompany  him  he  would  probably  find  it  there. 
Accordingly  the  two  proceeded  to  the  Judge's  room,  where, 
on  the  center  table,  lay  the  Judge's  mail,  consisting  of  a 
large  number  of  letters  and  papers.  Among  them  the 
Judge  noticed  a  small  package,  about  an  inch  and  a  half 
thick,  three  inches  in  breadth,  and  three  and  one-half 
inches  in  length.  It  was  addressed  as  follows,  the  words 
being  printed : 


(Three  postage  stamps.) 

HON.  STEPHEN  J.  FIELD, 

Washington,  D.  C. 


It  bore  the  stamp  x>f  the  San  Francisco  post  office  upon 
the  address.  The  Judge's  name  had  evidently  been  cut 
from  the  California  Reports,  but  the  words"  Washington, 
D.  C.,"  and  "Per  Steamer"  had  been  taken  from  a  news- 
paper. The  slips  were  pasted  on  the  package.  On  the 
opposite  side  were  the  words  in  print: 


FROM 

GEO.  H.  JOHNSON'S 

PIONEER  GALLERY, 

645  and  649  Clay  Street, 

San  Francisco. 


As  the  Judge  took  up  the  package  he  remarked  that 
this  must  come  from  Mr.  Rulofson.     "  No,"  he  immedi- 


104 

ately  added ;  "  Rulofson  has  nothing  to  do  with  the  Pio- 
neer Gallery."  It  then  occurred  to  him  it  might  be  a 
present  for  his  wife,  recollecting  that  the  mail  came  by  the 
steamer  which  sailed  from  San  Francisco  about  Christmas 
time.  "  It  may  be,"  he  said,  "  a  Christmas  present  for  my 
wife.  I  will  open  it  just  far  enough  to  see,  and  it  be  in- 
tended for  her  I  will  close  it  and  forward  it  to  New  York," 
where  she  was  at  the  time.  He  accordingly  tore  off  the 
covering,  and  raised  the  lid  just  far  enough  to  enable  him 
to  look  inside.  He  was  at  once  struck  with  the  black 
appearance  of  the  inside.  "  What  is  this,  Lake?"  he  said, 
addressing  himself  to  his  friend.  Judge  Lake  looked 
over  Judge  Field's  shoulder  into  the  box  as  he  held  it  in 
his  hand,  and  at  once  exclaimed,  "  It  is  a  torpedo  !  Don't 
open  it."  The  Judge  was  startled  by  the  suggestion,  as  the 
idea  of  a  torpedo  was  the  last  thing  in  the  world  to  occur 
to  him.  He  immediately  laid  the  package  on  the  sill  of 
the  window,  where  it  was  subjected  to  a  careful  inspection 
by  them  both,  so  far  as  it  could  be  with  the  lid  only  one- 
eighth  of  an  inch  open.  Soon  afterward  Judge  Lake 
took  the  package  to  the  Capitol,  which  was  directly  oppo- 
site the  Judge's  room,  and  to  the  office  of  the  clerk  of  the 
Supreme  Court,  and  showed  it  to  Mr.  Broom,  one  of  the 
deputies.  They  dipped  the  package  in  water,  and  left  it 
to  soak  for  some  minutes.  They  then  took  it  into  the 
carriageway  leading  to  the  Senate  chamber,  and,  shield- 
ing themselves  behind  one  of  the  columns,  threw  the  box 
against  the  wall.  The  blow  broke  the  hinge  off  the  lid 
and  exposed  the  contents.  A  murderous  contrivance  it 
was!  A  real  infernal  machine !  Twelve  cartridges,  such 
as  are  used  in  a  common  pistol,  about  an  inch  in  length, 
lay  imbedded  in  a  paste  of  some  kind,  covered  with  ful- 
minating powder,  and  was  connected  with  a  bunch  of  fric- 
tion matches,  a  strip  of  sand-paper,  and  a  piece  of  linen 
attached  to  the  lid,  so  that  on  opening  the  box  the  matches 
would  be  ignited  and  the  whole  explode.  The  package  was 
sent  to  the  War  Department,  and  a  report  was  returned  by 


105 

the  officers  who  examined  it,  with  a  detailed  statement  of 
the  machine.  Between  the  outside  covering  and  the  box 
there  were  two  or  three  folds  of  tissue  paper,  placed  there 
to  prevent  the  possibility  of  an  explosion  from  the  stamp- 
ing at  the  post  office,  or  the  striking  against  other  pack- 
ages during  the  voyage  from  San  Francisco  to  New  York. 
On  the  inside  of  the  lid  was  pasted  a  slip  cut  from  a  San 
Francisco  paper,  dated  October  31, 1864,  stating  that  on  the 
day  previous  the  Judge  had  decided  the  case  of  the  city 
against  the  United  States,  involving  its  claim  to  four- 
square leagues  of  land,  and  giving  the  opening  lines  of 
his  opinion.  The  Secretary  of  War,  Mr.  Stanton,  imme- 
diately telegraphed  in  cipher  to  General  Halleck,  then  in 
command  at  San  Francisco,  to  find  out  if  possible  the 
person  who  made  and  sent  the  infernal  machine.  Gen- 
eral Halleck  put  the  detectives  of  his  department  on  the 
search.  Others  employed  the  detectives  of  the  San  Fran- 
cisco police,  but  all  in  vain.  Suspicions  were  excited  as 
to  the  complicity  of  different  parties,  but  they  were  never 
sustained  by  sufficient  evidence  to  justify  the  arrest  of 
any  one.  The  instrument,  after  remaining  in  the  hands 
of  the  detectives  of  San  Francisco  for  nearly  two  years, 
was  returned  to  the  Judge,  and  is  now  in  his  possession. 
In  speaking  of  this  occurrence  the  Judge  says  it  has  often 
been  a  matter  of  wonder  to  him  how  it  was  that  some  good 
angel  whispered  to  him  not  to  open  the  box.  His  im- 
petuous temperament  would  naturally  have  led  him  to 
tear  it  open  without  delay.  Probably  such  hesitation  in 
opening  a  package  addressed  to  him  never  before  oc- 
curred, and  probably  never  will  again.  "  Who  knows," 
he  says,  "  but  a  mother's  prayer  for  the  protection  of  her 
son,  breathed  years  before,  was  answered  then?  Who 
can  say  that  her  spirit  was  not  then  hovering  over  him, 
and  whispering  caution  in  his  ears?" 

This  is  the  only  case,  except  that  of  the  Sharon  and 
Terry  matter,  spoken  of  in  another  portion  of  this  sketch, 
where  violence  was  attempted  against  the  Judge  for  a 

14 


106 

decision  he  rendered.  In  consequence  of  the  sudden  rise 
of  real  property  in  California  by  reason  of  the  immense 
emigration  to  that  State,  the  development  of  its  mineral 
wealth,  and  the  discovery  of  the  extraordinary  fertility  of 
its  soil,  the  litigation  in  a  multitude  of  cases  involved 
great  values.  Parties  by  decisions  rendered  with  refer- 
ence to  mines,  and  also  with  reference  to  land  titles  to 
property  upon  which  large  and  valuable  buildings  had 
been  erected  and  even  cities  had  grown,  were  made  rich 
or  poor  in  a  day.  Some  who  in  the  morning  deemed 
themselves  rich,  found  when  the  decision  in  their  case 
was  made,  that  they  were  stripped  of  nearly  every- 
thing. Others  who  were  deemed  poor  in  the  morning 
found  themselves,  by  the  decision,  men  of  wealth  in ' 
the  evening.  Of  course,  a  great  deal  of  feeling  was  pro- 
duced by  the  decisions  rendered.  Those  who  were  suc- 
cessful in  their  litigations  found  that  the  courts  had  only 
performed  their  duty  in  the  decisions  they  had  rendered. 
Those  against  whom  the  decisions  were  rendered  could 
not  be  satisfied  without  imputing  to  the  Judges,  in  many 
instances,  dishonorable  and  dishonest  motives.  There- 
fore it  was  that  all  judicial  officers  of  California  who 
were  called  upon  to  pass  upon  titles  to  lands  and  to  settle 
controversies  in  which  large  amounts  were  involved, 
were,  in  many  cases,  subjected  to  gross  and  unfounded 
imputations.  But  the  cases  mentioned  are  the  only  ones 
recalled  in  which  violence  was  resorted  to  against  the 
Judge  for  any  of  his  decisions. 

The  appreciation  by  the  court  for  its  associate,  Justice 
Field,  has  ever  been,  not  only  kind  and  courteous,  but 
marked  with  expressions  of  great  consideration.  When 
the  late  Chief  Justice  Waite  died,  his  associates  recom- 
mended Justice  Field  as  his  successor.  In  no  instance 
has  so  great  a  mark  of  consideration  been  extended  by 
Justices  of  the  court  to  one  of  its  own  number.  But  the 
President  seemed  to  consider  that  a  rule,  which  has  hereto- 
fore prevailed  in  the  court,  with  but  one  exception,  of  desig- 


107 

nating  a  member  of  the  bar  and  not  an  associate  of  the 
court,  to  be  its  Chief  Justice,  should  govern  him,  and  he 
passed  by  the  recommendation  of  the  associates  of  Justice 
Field.  The  exceptional  case  referred  to  was  that  of 
Associate  Justice  Gushing  being  appointed  by  Washing- 
ton as  Chief  Justice,  but  he  declined  to  take  the  place  on 
account  of  his  age  and  impaired  health.  In  no  other 
instance  has  an  Associate  Justice  ever  been  appointed. 

The  following  letters  from  Justice  Bradley  and  Justice 
Matthews  to  Mr.  Field,  shows  the  sentiments  of  the  court. 
On  the  day  that  the  nomination  of  Mr.  Fuller  as  Chief 
Justice  to  succeed  Mr.  Waite  was  made,  Justice  Bradley 
wrote  to  Justice  Field  a  letter  on  the  nomination,  giving 
his  estimate  of  the  persons  who  had  previously  filled  this 
office,  and  adding: 

"  It  is  greatly  to  be  lamented  that  a  popular  prejudice,  fostered, 
no  doubt,  by  those  who  would  profit  by  it,  should  exist,  as  it 
seems  to  do,  against  the  promotion  of  an  Associate  Justice  to  the 
place  of  Chief  Justice  of  the  Supreme  Court.  The  Associate 
Justices  are  generally  selected  with  as  much  anxiety  on  the  part 
of  the  Executive  to  procure  fitness  and  ability  for  the  place  as 
can  possibly  be  exercised  in  the  selection  of  a  Chief  Justice  ;  and  if, 
when  a  Chief  Justice  is  to  be  appointed,  they  are  passed  by,  and 
a  man  is  imported  into  the  court,  without  the  experience  in  gen- 
eral and  Federal  jurisprudence  and  in  the  business  of  the  court, 
which  they  are  presumed  to  possess,  it  can  only  be  justified  by 
the  selection  of  a  man  who  can  bring  to  the  court  the  prestige  of 
eminence  already  acquired  in  statesmanship  and  knowledge  of 
public  law  and  public  affairs.  Qualities  of  this  kind  are  of  great 
assistance  in  the  deliberations  which  the  Supreme  Court  is  often 
called  upon  to  give  to  the  questions  that  come  before  it  for  adjudi- 
cation. When  such  a  selection  is  made,  neither  the  public  nor 
the  court  has,  or  can  have,  a  word  of  complaint  to  utter.  It  has 
a  fitness  which  challenges  the  approbation  of  all  sensible  men. 
But  when  such  a  man  is  not,  or  cannot  be  found,  or  is  not  readily 
available  for  Executive  selection,  how  senseless  and  absurd  it  is 
to  decry  an  appointment  from  the  bench  itself,  especially  when, 
by  universal  acknowledgment,  it  can  furnish  more  than  one 


108 

member  not  wanting  in  any  requisite  for  the  distinguished  place 
to  be  filled,  and  when,  as  in  the  present  case,  there  is  entire  har- 
mony in  the  bench  itself  as  to  the  appointment  that  should  be 
made.  I  think,  my  dear  Judge,  that  I  am  not  mistaken  in  say- 
ing that  every  member  of  the  court  (yourself  excluded)  earnestly 
desired  your  appointment,  and  most,  if  not  all,  of  them  distinctly 
signified  to  the  President  their  wish  to  this  effect.  He  had  the 
frankness  to  concede  the  general  correctness  of  our  views,  as  I 
have  stated  them  above,  looking,  as  they  did,  to  the  continued 
high  standing  of  the  court  in  public  estimation,  and  gave  assur- 
ance that  if  he  did  not  select  a  member  of  the  bench,  he  would 
make  such  a  selection  as  would  commend  itself  to  the  court  as 

well  as  to  the  public 

"  But,  my  dear  Judge,  you  cannot  be  deprived  of  the  satisfac- 
tion of  knowing  that  if  your  associates  could  have  controlled 
the  appointment,  you  would  have  been  Chief  Justice  to-day. 
You  would  have  had  not  only  the  suffrages  of  your  brethren  on 
the  bench,  but  I  have  good  reason  to  believe  that  your  confirma- 
tion by  the  Senate  would  have  been  prompt  and  unanimous. 
"  Yours,  sincerely, 

(Signed)          "JOSEPH  P.  BBADLEY." 

As  the  Justices  of  the  court  were  about  to  separate,  Mr. 
Justice  Matthews  addressed  to  Justice  Field  the  following 
letter : 

"WASHINGTON,  D.  C.,  June  19,  1888. 
"  MY  DEAR  JUDGE  FIELD  : 

"  We  are  about  to  part  for  the  summer,  and  I  may  not  have  an 
opportunity  of  saying  good-bye  in  person  before  the  day  of  your 
departure.  I  take  this  method,  therefore,  of  wishing  yon  a  safe 
journey  to  your  circuit,  a  pleasant  vacation,  and  your  prompt 
return  at  the  appointed  time  with  renewed  health  and  vigor. 
May  I  add  the  wish  that  you  were  coming  back  as  Chief  Justice? 
I  wish  I  could  call  it  a  hope.  I  certainly  did  cherish  the  desire, 
when  it  became  proper  to  consider  the  question  of  filling  the 
vacancy,  that  the  administration  would  find  in  your  promotion 
the  readiest  and  most  satisfactory  mode  of  promoting  the  public 
interest.  And  such  I  know  was  the  general  feeling  on  the  part 
of  your  brethren  on  the  bench,  and  that  without  disparagement 
to  others  spoken  of  as  competent  to  fill  the  great  and  dignified 


109 

position  of  Chief  Justice.  It  is  natural,  perhaps,  that  we  should 
think  one,  who  had  for  so  many  years  and  so  worthily  discharged 
the  functions  of  an  Associate  Justice,  by  reason  of  that  experience, 
better  fitted  to  preside  over  the  court  in  which  he  had  so  honorably 
served. 

"With  best  wishes  for  you  now  and  always,  I  am, 
"  Your  friend, 

(Signed)  "STANLEY  MATTHEWS. 

"MR.  JUSTICE  FIELD,  Washington,  D.  C." 

At  the  centennial  celebration  of  the  organization  of 
the  Supreme  Court,  which  took  place  in  New  York  on  the 
4th  of  February,  1889,  there  was  an  immense  gathering 
of  great  lawyers,  eminent  judges,  and  men  distinguished 
in  different  departments  of  life  for  honorable  public 
services,  from  all  parts  of  the  country.  Mr.  Justice  Field 
was  selected  by  his  associates  to  reply,  on  behalf  of  the 
court,  to  the  addresses  which  were  made  on  that  occasion. 
It  is  sufficient  to  say  that  the  Justices  were  satisfied  and 
pleased  with  the  manner  in  which  he  discharged  his  duty. 
His  reply  is  published  in  the  Appendix  to  the  134th  vol- 
ume of  the  United  States  Supreme  Court  Reports. 

In  1865,  Mr.  Field  received  the  degree  of  LL.  D.  from 
his  old  alma  mater,  Williams  College.  He  has  been  at 
different  times  invited  to  speak  at  its  commencements, 
either  in  an  address  to  its  alumni  or  to  its  students,  but 
has  declined,  from  the  fact  that  the  effort  to  remain  stand- 
ing during  an  address  of  ordinary  length  would  be  too 
fatiguing,  owing  to  his  lameness,  and  not  from  want  of 
affection  or  respect  to  his  old  alma  mater. 

In  1869  he  was  appointed  Professor  of  Law  in  the 
University  of  California.  In  accepting  it  he  doubted 
whether  he  would  be  able,  during  his  continuance  on  the 
bench,  to  deliver  any  lectures  or  to  hear  recitations  of  any 
classes,  but  he  intended  to  retire  from  the  bench,  at  the 
age  of  seventy,  and  to  devote  the  remainder  of  his  life  to 
the  duties  of  the  professorship.  Subsequent  events  pre- 
vented the  carrying  out  of  this  purpose. 


110 

He  is  now  seventy-six  years  of  age,  November  4, 1892, 
and,  from  his  vigorous  health,  has  the  prospect  of  some 
years  more  on  the  bench.  On  the  13th  of  October,  the 
length  of  his  service  on  the  Supreme  bench  of  California 
and  the  bench  of  the  Supreme  Court  of  the  United  States, 
together,  amounted  to  thirty-five  years. 

The  labors  of  Judge  Field  on  the  bench  of  the  Supreme 
Court  of  California  contributed  greatly,  as  already  stated, 
to  the  settlement  of  land  titles  in  that  State.  After  he 
went  on  the  bench  of  the  Supreme  Court  of  the  United 
States  and  removed  to  Washington,  he  took  great  interest 
in  the  legislation  of  Congress  which  in  any  way  tended  to 
the  quiet  and  security  of  titles  in  that  State.  In  two  in- 
stances his  influence  in  that  direction  was  marked.  As 
stated  above,  there  was  great  confusion  and  uncertainty 
in  the  titles  of  lands  within  the  limits  of  the  city  of 
San  Francisco.  As  successor  of  the  Mexican  pueblo,  it 
claimed  title  to  four  square  leagues  of  land  upon  which  the 
city  was  situated.  Many  citizens  relied  upon  grants 
from  the  alcaldes  of  the  pueblo,  and  many  asserted  title 
from  possession  merely.  The  United  States  considered  all 
the  land,  not  granted  previous  to  the  cession  of  California, 
as  part  of  the  public  domain.  To  quiet  the  possession  of 
occupants,  so  far  as  the  pueblo  title  was  concerned,  the 
common  council  of  the  city  of  San  Francisco  passed  the 
ordinance  known  from  the  name  of  its  author  as  the 
"  Van  Ness  Ordinance."  It  was  approved  by  an  act  of 
the  legislature  of  the  State  in  March,  1858.  Of  course, 
if  the  title  was  in  the  United  States  this  confirmatory 
action  of  the  legislature  was  inoperative.  But  doubt 
as  to  the  efficacy  of  the  confirmation  from  that  source 
was  removed  by  the  act  of  Congress  of  July  1,  1864, 
to  expedite  the  settlement  of  titles  to  lands  in  the  State 
of  California.  (13  Stat.  chap.  194.)  That  act  was  in- 
troduced into  Congress  and  its  passage  secured  by  Sen- 
ator Conness,  of  California,  who  always  took  a  deep  interest 


Ill 

in  everything  that  tended  to  the  advancement  of  the  State, 
and  he  thought  that  nothing  would  do  more  for  its  pros- 
perity than  giving  security  to  titles  to  lands.  In  framing 
the  act  he  consulted  Judge  Field,  and,  at  his  suggestion, 
inserted  section  five,  which  the  Judge  drafted,  but  without 
the  proviso,  which  was  added  at  the  request  of  the 
Commissioner  of  the  Land  Office.  By  that  section  all  the 
right  and  title  of  the  United  States  to  the  lands  within  the 
corporate  limits  of  San  Francisco,  as  defined  by  its  charter 
of  1851,  were,  with  certain  exceptions,  relinquished  and 
granted  to  the  city  and  its  successors,  for  the  uses  and  pur- 
poses specified  in  the  "  Van  Ness  Ordinance."  The  holders 
of  grants  from  alcaldes  of  the  pueblo,  and  the  occupants 
of  lands  within  the  limits  of  the  charter  of  1851,  were  thus 
quieted  in  their  possessions.  Subsequently,  when,  upon 
the  decision  in  the  Circuit  Court  of  the  "  Pueblo  Case,"  its 
claim  to  four  square  leagues  of  land  was  confirmed,  appeals 
were  taken  to  the  Supreme  Court,  both  by  the  United 
States  and  by  the  city;  by  the  United  States  from 
the  whole  decree,  and  by  the  city  from  so  much  of 
it  as  included  certain  reservations  in  the  estimate  of 
the  quantity  of  land  confirmed.  Whilst  the  appeals  were 
pending  in  that  court,  Congress,  on  the  8th  of  March,  1866, 
passed  an  act  relinquishing  and  granting  to  the  city, 
all  the  right  and  title  of  the  United  States  to  the  land 
confirmed,  subject,  however,  to  the  reservations  and  excep- 
tions designated,  and  upon  the  trust  that  all  the  land,  not 
previously  granted  by  the  city,  should  be  conveyed  to 
parties  in  the  bona  fide  actual  possession  thereof,  by  them- 
selves or  tenants,  on  the  passage  of  the  act,  in  such  quanti- 
ties and  upon  such  terms  and  conditions  as  the  Legislature 
of  the  State  of  California  might  prescribe,  except  such 
parcels  as  might  be  reserved  and  set  apart  for  public  uses. 
This  act  was  drawn  by  Judge  Field  and  introduced  by  Sen- 
ator Conness,  through  whose  exertions,  and  those  of  Senator 
Stewart,  of  Nevada,  it  was  passed  unanimously  by  Con- 
gress. The  title  of  the  city  of  San  Francisco  to  its  munic- 


112 

ipal  lands  rests,  therefore,  upon  the  decree  of  the  court  as 
ratified  and  confirmed  by  this  act  of  Congress. 

The  Judge  also  drafted  many  sections  of  laws  passed 
by  Congress  having  for  their  object  the  removal  of  unnec- 
essary obstructions  to  the  administration  of  justice. 


^m!i^i 


nil 


JOHN  HO  WELL,  I 


